The USPTO Quietly Tightened the Rules on Examiner Interviews—And That Could Hurt Patent Applicants

October 14, 2025

In September 2025, without formal notice or public announcement, the U.S. Patent and Trademark Office (USPTO) modified its internal Performance Appraisal Plan (PAP) for patent examiners, introducing a one-hour cap on interview credit per “round” of prosecution and requiring supervisory approval for any subsequent interviews in that round.

This is not a rulemaking in the conventional sense: no Federal Register notice was issued, no stakeholder comment solicited, and no revision to the MPEP or CFR has been announced. Yet this internal policy shift, though procedural in appearance, carries material implications for applicants’ ability to engage with examiners—and, by extension, for the character and efficiency of U.S. patent prosecution itself.

The Role of Examiner Interviews

Examiner interviews have long been a structural feature of U.S. patent practice, codified not in statute but through the Manual of Patent Examining Procedure (MPEP) and shaped by administrative custom. MPEP § 713 states that “interviews for the discussion of the patentability of an application… should be freely had” where they advance prosecution. MPEP § 713.01 further notes that interviews can “obviate the necessity of filing a written reply,” underscoring their practical role in clarifying issues, resolving misunderstandings, and expediting examination.

The ability to engage substantively with an examiner through dialogue is not merely an efficiency mechanism; it is intertwined with applicants’ procedural rights under the Patent Act and the Administrative Procedure Act (APA). 35 U.S.C. § 132(a) requires that applicants be notified of reasons for rejection and be given a “reasonable opportunity to respond.” Courts have interpreted this requirement broadly, emphasizing that the examination process must be fair and meaningful.

For example, in In re Sullivan, 362 F.3d 1324 (Fed. Cir. 2004), the Federal Circuit stressed that applicants must be given a “fair opportunity to respond” to rejections. Similarly, In re Jung, 637 F.3d 1356 (Fed. Cir. 2011), described the examination process as inherently dialogic, noting that the applicant’s ability to engage substantively with the Office is integral to the statutory scheme. Interviews have historically been one of the most effective mechanisms to give practical effect to this principle.

From Examiner Discretion to Managerial Gatekeeping

The newly implemented PAP provision imposes a one-hour interview credit cap per prosecution round, shifting the examiner’s discretion to grant additional interviews to supervisory review. Examiners seeking to hold a second or third interview must now secure SPE (Supervisory Patent Examiner) approval and articulate why the additional discussion will “advance prosecution.”

This may seem like a modest managerial change, but in practical effect it restructures the incentive landscape. Examiner interviews are now time-limited activities subject to managerial gatekeeping, creating a strong disincentive for follow-up discussions. Given that examiner performance evaluations are tethered to production goals, the predictable behavioral response will be fewer interviews and narrower examiner availability for applicant engagement.

Tension with Established Doctrine and Guidance

The policy embedded in MPEP § 713 is clear: interviews should be encouraged where they advance prosecution. The PAP change stands in direct tension with this guidance, effectively contracting the examiner’s discretion and limiting the frequency of interviews without any corresponding amendment to the MPEP. This creates what administrative law scholars might call an “internal policy gap”—a divergence between operational incentives and published procedural expectations.

This gap has meaningful legal dimensions. Under the APA, agencies may issue internal personnel policies without notice-and-comment rulemaking, provided those policies are genuinely internal and do not affect the substantive rights or procedural entitlements of regulated parties. However, the D.C. Circuit has recognized limits to this doctrine: when an internal policy has a practical binding effect on external parties, it can function as a legislative rule in substance, even if labeled otherwise. See Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2000).

If the interview policy results in a systematic reduction in applicant access to examiner engagement, one could argue it alters the practical contours of applicants’ “reasonable opportunity to respond” under 35 U.S.C. § 132(a). While such a challenge would face doctrinal hurdles, the tension is not legally insignificant.

Strategic Implications for Patent Applicants

From a strategic standpoint, the new policy requires applicants and their counsel to recalibrate their approach to prosecution. Where interviews previously allowed for iterative engagement—especially in complex technologies where multiple discussions are often needed to refine claim language or traverse nuanced prior art—applicants will now likely have only one readily accessible interview per round.

This will require front-loading advocacy. Counsel will need to approach the initial interview with the assumption that it may be the only opportunity for meaningful dialogue. That means more thorough preparation, sharper amendment proposals, and a clearer articulation of fallback positions.

Equally important, applicants must anticipate increased reliance on written advocacy in cases where follow-up interviews are denied. That shift has cost, timing, and strategic consequences. Written responses often take longer to prepare and process, and they lack the fluidity of oral discussion. In practice, this may lead to longer pendency, more RCE filings, and an increase in appeals to the PTAB as applicants seek to preserve their rights through more formal channels.

Transparency and Administrative Law Concerns

Perhaps most troubling is the opaque manner in which the USPTO has implemented this shift. As of October 2025, the full text of the FY 2026 PAP has not been made publicly available. No formal communication has been issued to the patent bar. This absence of transparency undermines the agency’s stated commitment to stakeholder engagement and frustrates practitioners’ ability to adapt their strategies with clarity.

The lack of notice also heightens the administrative law tension. While internal personnel policies do not generally trigger APA notice-and-comment obligations, the functional impact of this particular policy—especially if unevenly applied across technology centers—could raise questions about procedural fairness, arbitrary and capricious action, or failure to provide a meaningful opportunity to respond. Those concerns may be amplified in prosecution records and, eventually, on appeal.

A Cultural Shift with Systemic Consequences

Beyond doctrinal and procedural considerations, this change represents a cultural inflection point. Examiner interviews have long functioned as a form of informal, collaborative problem-solving—a flexible counterpart to the formal strictures of written prosecution. Restricting that engagement nudges the system toward greater formality, adversarialism, and bureaucratic rigidity.

This shift is especially striking in light of the USPTO’s 2022–2026 Strategic Plan, which emphasized “active engagement” and “collaborative examination” as tools to improve quality and reduce pendency. The PAP change cuts in the opposite direction. It signals an institutional preference for tighter managerial control and more standardized workflows—even at the cost of flexibility that historically benefited both applicants and the Office itself.

Adaptation and Advocacy

For now, applicants and their counsel will need to adapt proactively. This includes restructuring interview strategy, documenting refusals, and maintaining robust written records to preserve issues for appeal. It may also mean collecting data on how the policy is applied across technology centers and art units. If patterns emerge showing systematic denials of second interviews, those data could form the basis for policy advocacy—or, if necessary, legal challenge.

Equally, the patent bar should not accept such policy shifts silently. Quiet internal changes can reverberate loudly in practice. By surfacing these issues early, practitioners can help shape the conversation before the procedural ground hardens beneath them.

The Real Battle Will Be in the Margins

The USPTO’s interview policy shift will not announce itself through sweeping doctrinal showdowns or headline-grabbing litigation. Its effects will accumulate quietly — in denied interview requests, in longer prosecution timelines, in more rigid exchanges where flexible dialogue once resolved deadlocks. The true impact will be felt in the margins of everyday practice: in how examiners choose to exercise constrained discretion, in how applicants recalibrate their strategies, and in how the administrative process absorbs or resists friction.

Those margins are where procedural subtleties often harden into systemic norms. If left unexamined, this change risks embedding a less collaborative, more adversarial prosecution culture. But margins can also be contested. Through strategic adaptation, persistent data collection, and sustained advocacy, practitioners have the ability not only to navigate this shift, but to shape how enduring its effects will be.