Why interviews matter in patent prosecution
The USPTO examination process is primarily written — the examiner issues office actions by mail, and the applicant responds in writing. This can be slow and often leads to an escalating written record of arguments and counter-arguments that ends up constraining claim scope. An examiner interview breaks this pattern by allowing direct, real-time communication. In a 30-minute telephone or video interview, an applicant's attorney can understand exactly what the examiner is concerned about, propose solutions, and get immediate feedback — work that might take two or three written response cycles spanning 12–18 months. USPTO data shows that applications with at least one examiner interview are significantly more likely to be allowed, and are allowed faster, than comparable applications without interviews.
How to prepare for an effective interview
Preparation determines whether an interview succeeds. Before the interview: (1) review the office action in detail, identifying the precise basis for each rejection and any ambiguities in the examiner's reasoning; (2) study the cited references — understand exactly where the examiner believes the references teach or suggest each claim element; (3) draft proposed claim amendments that would distinguish the prior art while still providing meaningful protection; (4) prepare clear, concise arguments for why the prior art does not anticipate or render obvious the claims; (5) consider what the examiner might counter-argue and prepare responses; (6) if the technology is complex, consider preparing a brief visual aid or claim chart. Submit a pre-interview communication before the meeting identifying the main issues to be discussed — this helps the examiner prepare and ensures the interview stays focused.
Conducting the interview
A productive examiner interview is a negotiation, not a presentation. Best practices: lead with a clear, concise explanation of what makes the invention different from the cited prior art (1–2 minutes maximum); focus the conversation on the specific elements the examiner found to be taught by the prior art; propose concrete claim language that would address the examiner's concern while maintaining meaningful scope; listen carefully to the examiner's responses — they often signal what they are willing to accept; avoid arguing past the examiner or repeating the same point multiple times; be prepared to concede narrow arguments gracefully to win the bigger issue; and try to leave the interview with a clear understanding of what claim amendments (if any) will place the application in condition for allowance. If the examiner agrees to allowable subject matter, ask specifically: 'If I amend claim 1 to add [specific limitation], would that place the application in condition for allowance?'
After-interview steps and the interview summary
After the interview, the examiner issues a written Interview Summary (Form PTOL-413) within two weeks, recording who attended, the date, what issues were discussed, and what (if any) agreement was reached. The applicant must then file a formal response that: (1) implements any agreed claim amendments; (2) provides written arguments supporting the allowance of the claims; and (3) specifically states whether any agreement was reached in the interview and summarizes the agreement. The interview summary becomes part of the prosecution history. Because it is less detailed than a typical written office action response, it creates a less restrictive prosecution record — there are fewer explicit statements distinguishing prior art that could later be used to limit claim scope through prosecution disclaimer. This is one of the key strategic advantages of the interview process over purely written prosecution.
Special interview contexts
Beyond standard examination, interviews are used in several special contexts: After-final interviews (37 C.F.R. § 1.116) — after a final rejection, applicants can interview the examiner to discuss what amendments would place the application in condition for allowance, before filing an RCE; Pre-RCE interviews — many practitioners request an interview before filing an RCE to understand exactly what the examiner wants, avoiding the cost and time of RCE prosecution; Appeal conferences — when an applicant appeals to the PTAB, the examiner holds an internal appeal conference; some practitioners request a pre-appeal interview to explore whether the rejection can be resolved before appeal; Accelerated Examination program interviews — under AEX, the examiner is expected to contact the applicant to discuss issues informally; Track One and prioritized examination programs — faster examination programs with more examiner engagement. Using interviews strategically throughout prosecution is a hallmark of sophisticated patent practice.
When to appeal instead of interview
Examiner interviews are not always the right tool. In some cases, appealing to the Patent Trial and Appeal Board (PTAB) is more appropriate: when the examiner is clearly applying the wrong legal standard and unlikely to be persuaded; when the examiner has made errors in interpreting the prior art that require a fresh perspective; when the examiner has consistently rejected the same claims through multiple office actions despite responses that address the stated reasons; or when the case law strongly supports the applicant's position. An appeal puts the case before a panel of three administrative patent judges at the PTAB. While appeals can take 18–24 months, a favorable PTAB decision can result in allowance of broader claims than could be obtained through continued examination. Many practitioners combine approaches: request an interview after the final rejection, and if that fails, proceed to appeal via an after-final response and pre-appeal brief conference request.
Frequently Asked Questions
What is an examiner interview in patent prosecution?
An examiner interview is a formal or informal meeting between a patent applicant's attorney (or agent, or in some cases the inventor) and the USPTO patent examiner assigned to the application. The purpose is to discuss the merits of the application, negotiate claim language, and attempt to resolve outstanding rejections. Interviews can be conducted in person at the USPTO, by telephone, or by video conference. They are governed by 37 C.F.R. § 1.133 and MPEP § 713. An interview requires that the examiner be available and that the application is in a condition where an interview would be useful — typically after a first office action but before the application goes final. The applicant typically initiates the interview request, though examiners can also initiate them. After the interview, the examiner issues a written Interview Summary (form PTOL-413) recording what was discussed and any agreements reached.
What are the benefits of requesting an examiner interview?
Examiner interviews offer several strategic advantages over purely written prosecution: (1) Faster resolution — an interview can resolve a rejection in a single conversation that might otherwise take multiple rounds of office actions and responses spanning years; (2) Better understanding of the examiner's concerns — written office actions can be vague about exactly what the examiner objects to; a conversation clarifies the specific issue; (3) Less restrictive prosecution record — informal discussions and agreements reached in an interview create less prosecution history than written arguments, preserving more flexibility for future infringement analysis; (4) Negotiating claim language — applicants can propose amended claim language in real time and get the examiner's informal feedback before filing a formal amendment; (5) Demonstrating good faith — examiners who feel heard and respected are more likely to work cooperatively. Studies have found that applications with examiner interviews have significantly higher allowance rates than comparable applications without interviews.
When is the best time to request an examiner interview?
The most common and productive time to request an examiner interview is after receiving a first non-final office action, before filing a response. At this stage: the examiner has studied the application; both parties understand what is in dispute; the application has not yet been finalized; and the applicant has maximum flexibility to amend claims or argue against the rejection. Interviews before the first office action are possible but less common — they are more appropriate when the application involves very complex technology or there are specific questions about how the examiner will handle a claim element. Interviews after a final office action are also possible but are more constrained — the examiner has less flexibility to introduce new grounds of rejection, but the applicant is also limited in the scope of amendments they can make. After-final interviews are often used to negotiate allowable claim scope before filing a Request for Continued Examination (RCE).
What happens at an examiner interview?
A typical examiner interview follows this structure: (1) Pre-interview preparation: the applicant sends an agenda or pre-interview communication identifying the specific rejections to discuss and proposed approaches to resolving them; (2) Opening: both parties introduce themselves; the applicant's attorney typically leads with a brief overview of the invention; (3) Discussion of rejections: each outstanding rejection is addressed — for prior art rejections, the applicant argues why the claims are distinguished from or not taught by the cited references; for § 101 or § 112 rejections, the parties discuss what specification support or claim language would address the examiner's concerns; (4) Negotiation: the parties may agree on specific claim amendments that would place the application in condition for allowance; (5) Closing: the examiner summarizes what was agreed; (6) Post-interview: the examiner issues a written Interview Summary within two weeks; the applicant then files a formal response implementing any agreed amendments and incorporating any written arguments.
How do I request an examiner interview?
To request an examiner interview: (1) Find the examiner's contact information — it is listed in each office action on the cover page; (2) Contact the examiner directly by telephone, email, or through the USPTO Patent Center interview request feature; (3) You can also use the USPTO's Electronic Examiner Interview Request System (EEIRS), accessible through Patent Center; (4) Identify the application number, the specific office action being discussed, and a brief statement of what you want to discuss; (5) Propose several available times — examiners typically schedule interviews within a few weeks; (6) Consider submitting a pre-interview communication (MPEP § 713.01) before the scheduled interview date, identifying proposed claim amendments and the arguments you intend to make — this helps the examiner prepare and makes the interview more productive. There is no USPTO fee for requesting an examiner interview. Interviews are a standard part of prosecution that examiners expect and are generally receptive to.