Below is the link to Professor Crouch, but in essence, patent applicants waiting for a first office action in hopes of escaping some of the PTO's new rules are not going to get their wish.
So how many cases will this actually affect?
Due to examiners workflow requirements, they always pull the oldest case on their dockets, then typically pull cases from farther down the chronological list in order to work on cases better suited to examination. Cases with a few, clear claims, no 112 issues, and no complex restrictions needed, will typically get moved to the top of the pile.
So with that thinking, of the ~3000 cases that must be examined due to workflow (one per examiner), a reasonable assumption is that 1/3 or so have 25 or more claims, making 1000 cases the probable floor.
Due to unpublished applications and the like, there is no easy way to estimate the actual number office actions this will impact, but at the minimum, considering there are 900,000 cases pending, maybe 600,000 of which are unexamined, this implies a 1 in 600 chance your application was pulled from the very top of an examiners docket.
Would be interesting to see if the USPTO issues a justification statement or just relies on something to the effect that this is a necessary an inescapable implementation step in order to be ready for November 1. Either way, this will no doubt further fuel the rule change critics.
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