CAFC Affirms PTO’s right to fire quality assurance specialist for 35%+ error rate.

Asokkumar Pal v. Department of Commerce (Fed. Cir. 2008)(nonprecedential)

Pal was a quality assurance specialist at the USPTO. His job was to review patent examiner decisions and determine whether the examiner made any ‘errors’ in either rejecting or allowing claims. In 2005 and 2006, the PTO reviewed 16 randomly selected cases from Pal’s file to determine whether he was properly reviewing examiner decisions. They found he was not making the correct decisions – that he erred more than 35% of the time. (A 25% error rate would have been acceptable). Acting on the advice of Pal’s supervisor and another SPE, Peggy Focarino decided to fire Pal. Focarino’s decision was upheld by the Merit Systems Protection Board (MSPB). Pal then appealed to the Federal Circuit.

Standard of Review: The Federal Circuit has jurisdiction over MSPB appeals. Most MSPB appeals to the Federal Circuit are affirmed. This result can be explained by the “highly deferential standard of review” given to the board. The Federal Circuit will only overturn an MBPB decision that is “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” Factual determinations are only reviewed for “substantial evidence.” Thus, “if the Board rests its decision on evidence that could lead a reasonable mind to reach the conclusion reached by the Board, we must accept the Board’s decision.

On appeal, Pal argued that the PTO’s judgment was faulty because it only looked at 16 cases in determining his error rate rather than his entire body of work (or his work spanning his probationary period). The Federal Circuit rejected that argument finding “no requirement that the agency must use any particular method for picking which work performed … will be subject to test.” In addition, Focarino did not err in discussing the case with a SPE who was familiar with the technology.

Mr. Pal had been with the Patent Office for 25 years and had received 22 “outstanding” performance evaluations and two “commendable” performance evaluations. His performance evaluation of “unacceptable” was his last and led to this cause of action. During his years, Mr. Pal trained junior examiners, taught the MPEP, and is a registered patent agent. The MSPB had noted that “it is extremely unfortunate that the agency could not have found another position for the Appellant, who seems to have many talents and has been a successful Federal employee for most of his lengthy career.” However, the decision to fire an employee versus demote an employee is within the discretion of the PTO.

In his brief, Mr. Pal argued that other similarly situated employees had mistake rates “as high as 45-50 percent” that “were never rated unacceptable.” That argument was not addressed by the Federal Circuit.

94 thoughts on “CAFC Affirms PTO’s right to fire quality assurance specialist for 35%+ error rate.

  1. Pal was an examiner in the catalyst composition arts until around ’98 when he went to some kind of quality review shop where they don’t have SPEs the way examiners do, thus he wasn’t in an art unit. He was the only examiner I knew who kept his copies of the weekly OG Notices in order on a shelf; same with the USPQs. The real question here is how politics alone can be allowed to determine the continued employment of an otherwise exemplary employee in what is supposed to be a merit-only civil service system. If there was error it seems to have been with someone else other than Pal, some genius manager type who of course will never pay the price with his own job. PTO management realizing how counterproductive its personnel and examining policies are would be the greatest thing that could happen to that place.

    As to “best and brightest”, yes some of them are, but they all work under a production quota system that requires they put out so much work product in so many hours, and none of the parameters has changed in decades, thus disregarding changes in the examining process, the amount of prior art in a field, changes in the law, you name it it’s been ignored by those who set the examining rules. But keep in mind that being an examiner, while it is the core function of the PTO, doesn’t get one any kind of upward mobility. All career-building details involve doing something other than examining, and you generally have to go looking for them, they’re not announced to you, you’re not selected out for special training to fill those slots despite your perhaps better aptitude for them. How PTO management makes personnel decisions is pretty much a black box. Greater transparency would be a tremendous improvement to the place since it would give better accountability to just who really are the screw-ups there.

  2. FWIW, when I do the math to determine the reliability of the sample, I get
    a confidence interval of 23 and a condfidence level of 95%.

    IOW, we can be 95% sure that the “true” error rate is somewhere between 5% and, oh, 45%.

    I think. But I am not a statistician.

  3. “Relentless obsession with attacking another person is an unhealthy disease.”

    You should be flattered that AllSeeingEye defines his existence around you like some kind of demented groupie.

  4. anonymous wrote:
    “”Gideon Pope” has no details to share, ”

    What? Come on. Blast me all you want – I could care less. But at least manage to learn the usual contrivances that are offered (he’s contrary just for the sake of it, he’s nasty because that’s his nature, he’s uneducated, he’s arrogant).

    I mean, you say I don’t have details to share?

    Please. Your well educated past and your well heeled person demand more. Frankly, if your best argument against me, or one of your best arguments against me, is that I lack detail, then you’re going to out yourself quite quickly.

    I’m all about the details. I’ve given detailed analysis about dozens of things in this blog.

    In discussing the issue at hand, in fact, in this thread, in fact, a brief review of my posts shows that I discuss the details of the case most exactly. I went and read the case to come up with the 6 out of 16 detail, I noted the detail that the guy had the misfortune of working for three women (hell!), and I argued cogently that it’s fundamentally wrong to fire an employee after 25 years of service, most of which were gauged as high value, based on such a trivial review.

    What detail are you looking for?

    Like I said, if you want to try to tear me down, I’d very much suggest you stick to the script – there are about 20% of people out there who are so bothered by my blunt presentation of the truth that they will be happy to cling to whatever crap you throw out that’s even close to reality.

    But no detail? Hah! Remember yourself ma’am.

  5. “Mooney is a pseudonym, but the person behind it occasionally contributes some substance.”

    …more like a pomp0us pr1ck who knows little but opines a lot. By your standard above, Mooney is as or more annoying than Gideon Pope. Primarily due to the glib commentary masquerading a legal analysis plus the persistent reference to excrement, pieces of paper, and goofy terms like baloney, greedy grabby and other stuff that someone’s grandmother probably used to say.

  6. Mooney is a pseudonym, but the person behind it occasionally contributes some substance.

    As has happened before, there’s more than one person posting as “anonymous”

  7. “What I mean by “schtick” is that I suspect that the troll Gideon Pope is a fictitious character invented to annoy others on this blog. The trite, over the top statements about yourself, the lengthy responses, and the shallow and glib general statements on the subject matter are all clues that you’re just some know-nothing in a bathrobe who goes to comments sections to “kick the anthill.” ”

    ~ I’m pretty sure you’re referring to Mooney above…

  8. “The Deming Management Method,” by Mary Walton and W. Edwards Deming:
    14 Points
    1. Create constancy of purpose for improvement of product and service.
    2. Adopt the new philosophy.
    3. Cease dependence on mass production.
    4. End the practice of awarding business on price tag alone.
    5. Improve constantly and forever the system of production and service.
    6. Institute training.
    7. Institute leadership.
    8. Drive out fear.
    9. Break down barriers between staff areas.
    10. Eliminate slogans, exhortations, and targets for the workforce.
    11. Eliminate numerical quotas.
    12. Remove barriers to pride of workmanship.
    13. Institute a vigorous program of education and retraining.
    14. Take action to accomplish the transformation.
    5 Deadly Diseases
    1. Lack of constancy of purpose.
    2. Emphasis on short-term profits (or goals).
    3. Evaluation by performance, merit rating, or annual review of performance.
    4. Mobility of management.
    5. Running a company (agency, firm, or any other organization) on visible figures alone.
    Read it and understand it folks. Many of these types of problems could be avoided.

  9. What I mean by “schtick” is that I suspect that the troll Gideon Pope is a fictitious character invented to annoy others on this blog. The trite, over the top statements about yourself, the lengthy responses, and the shallow and glib general statements on the subject matter are all clues that you’re just some know-nothing in a bathrobe who goes to comments sections to “kick the anthill.”

    It’s a common tactic. People invented characters at the old Princeton Review law school board and at the much-despised autoadmit forum. Each character had a particular personality and a catchphrase. Abovethelaw has “Count Layoffula” who posts laughing comments in the posts about law firms laying off attorneys and staff this month, and “Justin Timberlake” who brags about himself in the third person.
    link to abovethelaw.com
    link to abovethelaw.com

    This blog’s most prolific current troll is “Gideon Pope”, who apparently “sees the truth to which others are blind,” which is that patent law is a facade for corporations controlling the country. “Gideon Pope” has no details to share, and doesn’t respond to criticism because he’s above all that, and any criticism or question is proof that the person talking is one of the “sheeple” who hasn’t opened his eyes yet.

    That joke’s already been done
    link to youtube.com
    link to maddox.xmission.com

    Go away and stop polluting the blog.

  10. Mr. Nowatarski writes:

    “Interesting. Did they cite their own statistician to support their views?”

    .pdfs of the briefs (with appendices, which include a copy of the AJ’s decision) are available on Westlaw.

    My recollection is that on cross-examination, the agency showed that the statistician’s conclusions were based on misapprehensions about how the data was gathered and that, when confronted with his misapprehensions, he backed off of his conclusions enough to satisfy the AJ that the agency proved what it needed to prove.

  11. “Let us know when you get around to relaxing the sphincter.”

    Personally I don’t care, but for some strange reason, Mooney is very interested in this information.

  12. “I think reading any greater meaning into it is naive”

    Avoiding “reading any greater meaning into” this topic is naive. As usual, Mooney fails to recognize the significance of an event like this.

    Try this Mooney, take a piece of paper and write the following words on it “the PTO’s personnel policies have a drastic impact on the practice of a patent attorney” Then read it over and over again.

    Oh wait, I forgot how easily you become “bored.”

    Maybe the patent world isn’t for you.

  13. “I pack my truth in a turbo enema”

    Yes, the packing in part is quite evident. Let us know when you get around to relaxing the sphincter.

  14. “Frankly, this particular soap bores me and I think reading any greater meaning into it is naive.”

    I’ve found that there is no such thing as “boring” things; only boring people, e.g. people who get “bored” by things. Iggy Pop was bored, and look where it got him.

  15. Yep, everybody’s a sad freak and everything is worthless garbage. Sounds like a little self projection Mooney.

  16. Anon E Moose is right on the nose. QA review is Allowance Prevention. Anyone not buying into that cr*p would likely get fired. I recommend hiring him. Given his outstanding record, it can’t be the “quality” of his work, LOL!

  17. Somebody wrote:
    “Gideon’s . . . schtick is all substance-free contrarianism . . . . It’s possible be blunt and honest without being nasty . . . . Some people . . . insist that they’re just “telling it like it is” . . . Total copout, I say.”

    If that was, in fact the case, then why would I have been a valued employee at every place I’ve worked?

    If you were correct, then it stands to reason that I’d be booted out as soon as it was clear that my schtick was just insulting people under the cover of honesty.

    But you’re incorrect.

    The truth is, while there are always a few folks like you at every place I work who are threatened by me, everybody else appreciates that I’m a no Bee S guy. Sure it rubs each person, in turn, the wrong way on occasion.

    But that wrong rubbing is not so much being caused by my words, which are pure and unsullied by your civilization, but by the friction of those words on the unctuous, protective, and tacky coating of cultural slime that covers those around me.

    Every place I have ever worked I have been quickly taken up by the head honcho as a trusted side kick. From burger joints to AmLaw100, it was always the same.

    The Big Dog would watch me pull out the Gideon Pope Double Barrel Shotgun of truth and blast a few bleating sheeple, and usually one ranked more highly than me, and they’d think – “this is a guy I want to keep close.”

    Sure. I’m abrasive. I’m coarse.

    In fact, you’re perfectly correct – I’m nastier than I need to be if my only goal was the polite dissemination of truth.

    But that’s not my goal.

    I’m not here to give you an earful of truth, mister mushy gushy feel good, proactive speaker, empathizer.

    I pack my truth in a turbo enema; I don’t have either the time or the patience to allow your brain to screen my words too finely.

  18. Eh. No mystery to this one. He pissed off the wrong person at the PTO and they used this as a reason to force him out. Simple as that.

  19. “Mr. Pal had been with the Patent Office for 25 years and had received 22 ‘outstanding’ performance evaluations and two ‘commendable’ performance evaluations.”

    This case shows you exactly what the PTO thinks of its own employee ratings. Twenty four previous outstanding and commendable ratings, and one unacceptable rating over a three month period, and the guy is canned.

    If the PTO thinks its own employee ratings are nothing but a meaningless exercise, is there any reason any of us should think differently?

  20. Oh, and “Anon E. Moose” you are WRONG that OPQA sits in on appeal conferences. Most TCs use a QAS (from the TC not OPQA) or a 2nd SPE.

  21. Some of you REALLY have it wrong about a few facts. I’ve been there (PTO) & seen the stats, PAPs & numbers.

    1) OPQA DOES review non-finals and finals in addition to allowances. About the some # of each, IIRC. So you (whomever said it) are wrong on that point. 10th floor just makes a LOT bigger deal about allowance error rates.

    2) The examiner’s PAP DOES take into account correctness and quality of non-finals & finals. These would fall out under “patent examiner functions” (PEF) or “action taking” (AT), depending on the severity of the error & your grade/authority. A junior examiner is only “responsible” for PEFs. A partial sig examiner is “responsible” for PEF & AT. A primary has these plus patentability (i.e., proper allowances & finals). (You can probably find this stuff on the POPA website.) So you (whomever said it) are wrong on that point.

    FYI – PEFs are the basics: search, art evaluation & application, 112, 101, etc. but not the ultimate decision to reject or not. AT – are the actual determinations to rejection or not. Patentability – the decision to allow or finally reject an application.

  22. “The AJ wasn’t persuaded and apparently thought that Mr. Ghosh misapprehended or overstated some of the facts when he reached his conclusions.”

    Interesting. Did they cite their own statistician to support their views?

  23. If may go meta for a moment, the strange popularity of this thread shows a demand for some genuine blogger journalism.

    Isn’t there anyone in DC who can pick up the slack? I like Dennis’ posts, but in this instance it would be nice to have more specific facts. Since it is our PTO, there should be enough transparency to at least find out exactly what these “right” and “wrong” rejections were that Mr. Pal made.

    If nothing else, someone could simply call Mr. Pal up and get a nice interview.

    Frankly, this particular soap bores me and I think reading any greater meaning into it is naive.

  24. On a side note…

    I’m a 2L in Chicago and curious about IP jobs that don’t involve billing extreme hours. I realize this means less pay, which is fine.

    I’m thinking smaller firms, or something in-house. Anyone have advice on where to look?

  25. On a side note…

    I’m a 2L in Chicago and curious about IP jobs that don’t involve billing extreme hours. I realize this means less pay, which is fine.

    I’m thinking smaller firms, or something in-house. Anyone have advice on where to look?

  26. Why on earth would anybody want to be a QAS after seeing this. Sounds like a job for gullible or depserate people. You’ll only get nailed for not kissing up to the right person.

  27. former examiner wrote, “another candidate was considered prime examiner material because her low GPA made her unemployable elsewhere”

    That’s choice! The USPTO’s solution to retention: hiring people that are unlikely to be hired away.

  28. My gut feeling is this case turned almost solely on the extremely deferential standard of review in admin law cases. But I still have the sense this guy got screwed. I agree with the poster who questioned the ridiculously small sample size, the poster who questioned the definition of error, and the poster who inferred that the PTO was, in fact, acting arbitrarily and capriciously.

  29. Anon, Commisioner Banner once sarcastically said that he was proud to have trained the patent bar. I’m hardly alone among those practicing prosecution with detailed first-hand knowledge of the production system.

    It is trivially easy to avoid turning a bad rejection turning into an n,-th non-final action, or spenind any time writing the n,-th non-final; just make the bad and groundless rejection final. Applicant doesn’t like it? Appeal. There’s no line item on an Examiner’s PAP for reversals on appeal either.

    Applicant wants a pre-appeal brief conference? The three people in the room will be the Examiner who wrote the rejection, the SPE who signed it, and the OPQA examiner who is going to reverse both of them if they allow the case. I wonder how that conference will turn out?

    90% of an examiner’s performance is judged on how many cases they move, and how quickly they move them. They’ve added a 5% component to imact for a bad allowance. No review or demerit for any bad rejection. Anything else is just lip service.

    -Anon E. Moose

    anon | Dec 16, 2008 at 11:36 PM:
    It may not be taken into account on the PAP, but bad rejections are definitely taken into consideration in every Examiner’s overall performance. Statistics are regularly collected for every second, third, fourth, etc. and Examiners who have frequently have “nth” non-final rejections will be talkd to about this. We’ve even had special training on this and it is no secret that it IS looked at. Besides, one things that attorneys do not realize is that bad rejections actually HURT the Examiners making them (as well as causing headaches for Applicants) – – i.e. Examiners get ZERO counts for any non-final rejection; thus, each “bad” rejection that has to later be “reworked” is coming out of the Examiner’s time – time that could have been used examining a new case and getting an additional FAOM count. Thus, for good or bad, there is absolutely no incentive for Examiners to make “bad” rejections.

  30. In whose judgement did he get it wrong 35% of the time? How do we know that person doesn’t get it wrong 100% of the time? Who reviewed the work? Topin? Dudas?

  31. Hey Pal,

    It may not seem like it, but look at this as the best thing that could happen to you. You are probably nearly old enough to retire, and now you can start a new career instead of wasting your mind away at home.

    I left the PTO about eight years ago after becoming a primary and took two other primaries with me. Screw the PTO (mis)managers! Move on to better pastures!

    After a year, you will be scratching your head and wondering why you stayed so long. However, keep in mind that it is not too late to make it all worthwhile.

    Merry X-mas to all (except, of course, the (mis)managers)!

  32. Gideon’s posts are pretty weak. His schtick is all substance-free contrarianism and rudeness for their own sake, and it clutters the comments section here. I suspect it’s all just badly done satire.

    It’s possible be blunt and honest without being nasty, just as it’s possible to wear pants and eat with a fork without sacrificing your integrity and self respect. Some people are just too selfish or lazy to try, but insist that they’re just “telling it like it is” in a way “you can’t handle,” and “refusing to be a sycophant.” Total copout, I say.

  33. “It may not be taken into account on the PAP, but bad rejections are definitely taken into consideration in every Examiner’s overall performance. Statistics are regularly collected for every second, third, fourth, etc. and Examiners who have frequently have ‘nth’ non-final rejections will be talkd to about this. We’ve even had special training on this and it is no secret that it IS looked at. Besides, one things that attorneys do not realize is that bad rejections actually HURT the Examiners making them (as well as causing headaches for Applicants) – – i.e. Examiners get ZERO counts for any non-final rejection; thus, each ‘bad’ rejection that has to later be ‘reworked’ is coming out of the Examiner’s time – time that could have been used examining a new case and getting an additional FAOM count. Thus, for good or bad, there is absolutely no incentive for Examiners to make ‘bad’ rejections.”

    I couldn’t disagree with this more. Most of the ‘nth’ non-final rejectinos I get could not have taken more than 10 minutes to cobble together. Usually it’s some new second, or third, or fourth, equally non-analogous as the primary reference being thrown into the mix after a shoddy word search. It’s painfully clear that the examiner’s done nothing more than punch up the previous OA, cut and paste some irrelevant section of the new reference into the OA, call up the “arguments are moot” form paragraph, don’t bother proof reading the “new” OA, hit the print button and throw it into the old count box. Not exactly a big hit on the examiner’s time.

    I agree whole heartedly with John G. that actions per disposal should be a factor in the examiner PAP. The PTO calculates it and puts it on the examiner’s production report every bi-week. But they simply ignore it when rating the examiners. The simple fact of the matter is any examiner doing 110+% production is automatically rated “outstanding” (or at the very least commendable) and given a bonus.

    6, it’s me. None of those other posters are me. I do appreciate their posts though.

    I love Gideon’s posts. He’s as funny as Mooney.

  34. “That’s your job, isn’t it? What else are you going to do? Call your client up after each OA you receive and say ‘Yep, the Examiner’s absolutely correct on this. I don’t think you can get a patent on this. Sorry.'”

    If it is true, I will tell the client. In practice, the goal shouldn’t be to churn responses (which make more money for attorneys) or churn RCEs (which give examiners more counts). Instead, the goal should be to quickly and efficiently find the line between patentability/unpatentability that both the examiner and applicant can agree upon or at least narrow the issues before appeal.

    If the application is a loser, I don’t mind telling the client because the client will appreciate not wasting money on a loser. However, that RARELY happens. Mostly, I get prior art that isn’t even close or if it is close, missing the key limitations (which miraculously get read out of the claim and/or ignored altogether).

    BIG WASTE OF TIME …..

  35. “Third, I’m guessing that the person posting about “bad rejections coming out of the examiner’s time” hasn’t noticed lately all the meritless rejections foisted upon the examiners by their supervisors because of some perceived problem with “quality” (likely from Jonny the Dude) when the real problem is the SPEs’ lack of knowledge of the art they’re supervising.”

    You’re right, I haven’t noticed it, but IF it’s happening the Examiner needs to grow a pair and stick up to his/her SPE. In my two years at the PTO, I’ve maybe had 2-3 cases returned to me for some reason or another – that’s out of HUNDREDS that I’ve examined. Then again, my case is probably not representative. What’s also not representative, however, is that ALL rejections coming from the PTO are total BS. And btw, that any SPE is not an expert in the art that’s in his/her art unit is not earth-shattering news. Most art units cover hundreds (some thousands) of subclasses – nobody, no matter what your background is, will be an expert across such a broad range of technology.

  36. “…and Examiners who have frequently have “nth” non-final rejections will be talkd to about this.”

    That explains why I get so many finals that should be another non-final. (e.g., change “a” to “the”, argue over the applied art, then get all new references and a final office action next time around).

    Sometimes I argue it, but usually it isn’t worth the client’s money (takes too much time). Pay the RCE, give 6 his gravy, move on with life.

  37. Gideon Pope is like punk rock. It’s a little loud and shocking at first, but after a while you appreciate it’s raw honesty.

    I always liked bands like the Pretenders, SexPistols, … (some will argue they are not “punk”). I particularly like Pope’s take on being “that irreverent guy” that refuses to suck up and disdains the ki$$ a$$ atmosphere of BigLaw.

    Love it or h8te it, Pope’s commentary is anything but glib.

  38. Mooney, the day you become generous, I will become generous. I’m just a simple mirror. If you don’t like what you see, change it.

  39. Anon E. Moose said:

    “This unfortunate case sheds ZREO light on the piss poor examination process because Quality Review at the USPTO is not Quality Review, it is Allowance Review (and Prevention). The only cases reviewed by Quality Review are allowed cases. The incomprehensible and groundless rejections that cost applicants real money to respond to go unchecked.

    There is no line item in an examiner’s PAP for bad rejections, only for bad allowances.”

    Yup– Here lies the problem with the USPTO in a nutshell and a leading cause of the backlog. Examiners are scared to death to allow anything these days. Back in the old days, examiners (even junior ones) had authority to allow claims.

    Is there an equal protection case here about Quality Control only reviewing allowances but not rejections?

  40. I know this man; he worked in the area I examined in. First off, the case law says this is a highly unpredictable art within the already unpredictable area of chemistry, so how any of these second-guessers could have actually come up with anything objectively supportable to ding him prior art wise is highly dubious. Second of all, nobody has been promoted to primary examiner in that field in this century which should tell you something about just how difficult an art it is. Third, I’m guessing that the person posting about “bad rejections coming out of the examiner’s time” hasn’t noticed lately all the meritless rejections foisted upon the examiners by their supervisors because of some perceived problem with “quality” (likely from Jonny the Dude) when the real problem is the SPEs’ lack of knowledge of the art they’re supervising. Fourth, when I inherited that art many of the first actions came from a former examiner who is now a group director, even though I had to redo every single one of those cases from start to finish; what does that tell you about quality control and personal favoritism within the PTO management ranks? Sounds to me like a bunch of brown-nosers in the SES ranks hunting for scalps they can show The Dudester and using the chance to get rid of those they don’t particularly like or who embarrass them by actually doing the job properly unlike they when they were examining. Fifth, yes they have been looking for excuses to cull out examiners for the pettiest of reasons. One newbie got fired for being late to his newbie classes twice (regardless of the difficulty of commuting in the DC area; see all the telecommuting projects the PTO is trying to get its examiners to buy into so they’ll take up less costly real estate), while another candidate was considered prime examiner material because her low GPA made her unemployable elsewhere.

  41. “I’m no statistician, but you find 6 errors in a sample of 24 out of a total set of 130, it seems highly unlikely that the remaining 106 determinations are error-free.”

    I’m not either, but I have had some stat and have certainly played enough games that involved the use of very small chances a lot. And I’m well acquainted with the effects of the random outlier. In stat class it results in you getting a 12 on the 2 dice. In a game it results in 5 minutes of wasted time. Here it may have resulted in a man losing his job. Completely and unacceptably ridiculous. Someone far above said that you’d have to review everyone’s work to fire someone. No, don’t review everyone’s work, review the outlier’s work. If I were him I would have appealed to Dudas first. Such inefficiency! The horror of giving someone a fair go! They could simply decide to trust the reviewers, or simply trust the examiners. But no that wouldn’t do at all.

    You want to discuss waste? OPQA is by definition waste isn’t it? Either the examiner is the examiner or he is not. Either he is a government agent entrusted or he is not. CAFC should have shot down the whole kit kat and kaboodle it seems to me.

  42. Stay at a place like that long enough, and eventually the law of averages will catch up with you, no matter how hard you try. I don’t see how anybody could work like that for thirty years without getting nailed at some point.

  43. “I do that every single day … and I find fault in about 95% of the office actions I see.”

    That’s your job, isn’t it? What else are you going to do? Call your client up after each OA you receive and say “Yep, the Examiner’s absolutely correct on this. I don’t think you can get a patent on this. Sorry.”

  44. SmallPeeingGuy, I think Gideon Pope could use some of your personal trolling right about now. Surely you can spare some of your hatin’ for GP. I mean, it’s Christmastime. Be generous.

  45. “Given that the “best and brightest” likely get promoted to these positions, I wonder what that says about the rest of the Corp of Examiners?”

    Umm, NOT!! Those that get promoted are most likely those that were struggling in a high production environment (i.e. there’s nowhere else to put them and they’re not quite bad enough to be fired) and/or those that are well-liked by the higher-ups for one reason or another. To say that these are the PTO’s “best and brightest” is overstating it a bit.

  46. “There is no line item in an examiner’s PAP for bad rejections, only for bad allowances.”

    It may not be taken into account on the PAP, but bad rejections are definitely taken into consideration in every Examiner’s overall performance. Statistics are regularly collected for every second, third, fourth, etc. and Examiners who have frequently have “nth” non-final rejections will be talkd to about this. We’ve even had special training on this and it is no secret that it IS looked at. Besides, one things that attorneys do not realize is that bad rejections actually HURT the Examiners making them (as well as causing headaches for Applicants) – – i.e. Examiners get ZERO counts for any non-final rejection; thus, each “bad” rejection that has to later be “reworked” is coming out of the Examiner’s time – time that could have been used examining a new case and getting an additional FAOM count. Thus, for good or bad, there is absolutely no incentive for Examiners to make “bad” rejections.

  47. “Twenty plus years is a long time to be in one place. I don’t care where it is.”

    Well Mooney, I guess you’ve been on the planet for at least twenty years, I have no doubt that it’s time for you to take a hike.

    You don’t know dick.

  48. I take back the bit about the CAFC not addressing the argument. It’s treated at page 6 of the opinion:

    “Pal has presented the court with extensive briefs that present further arguments that challenge the PIP process itself and the judgments reached by those who judged his work and finally ordered his removal. We have reviewed each of those arguments with care. Pal’s arguments present no reversible error. Substantial evidence shows that the process was fair and that on the record as a whole, a reasonable mind could reach the same conclusion as reached by the Board.”

    Fair enough, in my view. Pal’s arguments are incoherent, the government casts a bit of doubt on his numbers, and it was Pal who had the burden of demonstrating error. I think the panel got it right. Again, though, I wonder if Pal might have done better if he’d had counsel at the CAFC.

  49. Somebody wrote: “Gideon, it’s hard to imagine you lasting long in any sort of civilized workplace.”

    Well, true enough, but not because I’m uncivilized. It’s because “civilized” workplaces are imaginary constructs where stooges run around all day trying to say the right thing, kiss the right ass, not make the big mistake.

    I just walk in and point out what everybody knows is true.

    Very rarely do people dispute that what I say is true. They dispute that I have said it.

    It’s like my ongoing theme that I simply love to rub in YOUR face every time I come here.

    You see, it’s brutal on the civilized ones. They see me, and they can see that I’m funnier, smarter, wiser, more insightful, and more talented than them, and then they hear me say, “the patent system is a joke, and you’re a part of it,” and they can’t help but get angry and start saying, “the patent system is a fair system for adjudicating patent rights, with a developed and consistent body of case law, a well thought out system of regulation, a high quality examination corp, . . .”

    ahahahaHAAAHAHA guffaw.

    I can see it in their eyes when they defend it. It’s not that I’m wrong, it’s that I’m pissing in their pot. They love sitting at the reception and telling people about the law. Or citing CFR sections by number. Or making references to FESTO.

    It’s a facade. I’m a facade burner. Civilized people don’t like that.

    So you’re right – I’ve never lasted among others for long – but not because they boot me. Oh no. In several decades and dozens of jobs, both menial and recondite, I have never been terminated – it was always me who chose to leave. And I’ll leave here soon too, and I’ll leave you to your MM(DC)/EX6/MD/JD arguments, which are nothing more than arguing about the angle of the hull on the Titanic – worse than academic – illusory.

    One of my favorite “civilians.”

    One guy used to pal around with the name partner. If the name partner so much as told a crappy knock-knock joke, this yahoo would burst into maniacal laughter. It was ridiculous. Everybody else would give the polite laugh. Me? I’d just sit there. Then one day I got asked, and so I said – “sorry (name partner), it wasn’t funny.” Imagine that, me ruining the civility of it all.

  50. Mark, Mr. Pal actually did present the testimony of a statistician at his AJ hearing… a “Mr. Dhiren Ghosh.”

    The AJ wasn’t persuaded and apparently thought that Mr. Ghosh misapprehended or overstated some of the facts when he reached his conclusions.

  51. 6 writes:—–
    “Finding 6 out of 130? His actual error rate could very well be 5%”
    ————–

    I’m no statistician, but you find 6 errors in a sample of 24 out of a total set of 130, it seems highly unlikely that the remaining 106 determinations are error-free.

  52. It’s a shame Mr. Pal didn’t hire a statistics expert in his defense.

    16 is way too small a sample. He could have had an actual error rate as low as 15% and still might get 6 out of 16 wrong just due to the luck fo the draw. (Assuming binomial distribution and 95% confidence interval.)

  53. 6 writes:—
    So now we should throw in our livelihoods to random chance? Good call PDS and whoever decided that this was an appropriate measure of an error rate to base retention upon. It seems to me that if you’re going to fire someone at least considering a majority of his work would be appropriate. Even that is below what should be the minimum, specifically reviewing enough work that you can say with all reasonable confidence that you have enough evidence that his work is completely shoddy. Finding 6 out of 130? His actual error rate could very well be 5%. But we will never know because nobody cares enough about an actual error rate, they only care about a random error rate generated by chance. W T F is going on in your minds?
    ———–

    6, people get fired all of the time for making their first mistakes. People get laid off for making no mistakes at all. In this case, the PTO thought Pal was screwing up often enough that he needed to go.

    It would have been a stronger decision if the PTO had reviewed every last shred of his work, but if that’s the standard then what’s the point of having people in Pal’s situation at all? Either you never fire anyone or you have to redo all of an employee’s work for him from scratch and compare your results to his. Horribly inefficient, even for the government.

  54. Steve M, I suggest you read the briefs and perhaps the record before crying foul… and *especially* before saying that “there’s more to this unfounded firing than what the written record contains.”

    Perhaps the firing was unfounded; perhaps not. Pal had counsel and witnesses and an opportunity to prove to the AJ that he was right. The AJ–who saw the evidence that you haven’t seen, and who apparently sympathized with Mr. Pal–thought the firing was permissible.

  55. “However, the expressions “cutting off your nose to spite your face,” ”

    I think you used that one wrong, but the other 2 apply for the reason you wanted to use them.

    “I do that every single day … and I find fault in about 95% of the office actions I see. ”

    And then I find fault with 90% of your 95%. So you’re left with a paltry 5% of “my” cases that you actually found fault with. GJ, glad you get paid such big $ for such an astounding rate of success. At least this applies to the attorneys practicing before me. They have around your 95% rate. Well, I take that back, they probably come back around 40% of the time unamended. But I’m sure you’re counting even some of the ones you amend as ones that had a problem in the OA. And you’re probably also counting OA’s where there was a supposed teaching away. Probably ones on 102 references also (lol). There may have been a teaching away. I might have considered it and considered it unconvincing, no error in that OA. We could go around and around over the different issues all day long. I literally do this already for days on end.

    “Not good at statistics are you? Random sampling is a fundamental aspect of most quality programs — it has been around for longer than you’ve been alive.
    link to sixsigmaspc.com

    So now we should throw in our livelihoods to random chance? Good call PDS and whoever decided that this was an appropriate measure of an error rate to base retention upon. It seems to me that if you’re going to fire someone at least considering a majority of his work would be appropriate. Even that is below what should be the minimum, specifically reviewing enough work that you can say with all reasonable confidence that you have enough evidence that his work is completely shoddy. Finding 6 out of 130? His actual error rate could very well be 5%. But we will never know because nobody cares enough about an actual error rate, they only care about a random error rate generated by chance. W T F is going on in your minds?

    And FYI I’m not bad at stat. I know why it is used. I know why it is used in some detail. I just prefer to not throw humans fates to the statistical winds, when those winds dictate that there will be outliers and when it all boils down to a judgement call after we collect their fate from the winds.

    “I hope this news disturbs smart people (like Mr. Darling) as much as it does me. To me it says that PTO (mis)management are trying to get rid of legacy people who really understand how examination should be performed. Mr. Pal has come up through a time of great progress in patent law and should be treated as the rich resource that he probably is.”

    Ok, that’s a 100% affirmation that AllSeeing, as well as Cave, were just nicknames for JD. Seriously JD, it is one thing to call me Toupin based on MM’s hunch, but this is 100% dead give away. I presume that’s your trolling name. On other boards other trolls do the same thing. Even so, I agree with what you said there.

    My boss.

    7 is best

    link to boingboing.net

  56. Dennis writes———:
    In his brief, Mr. Pal argued that other similarly situated employees had mistake rates “as high as 45-50 percent” that “were never rated unacceptable.” That argument was not addressed by the Federal Circuit.
    —————-

    The panel should have addressed that argument. All 3 briefs are available on Westlaw. Mr. Pal’s is a bit difficult to slog through.

    As far as I can tell, he got the best evidence he could from the PTO and tried to calculate other employees’ error rates on his own.

    The government argues (pp. 22-26 of its brief) that Pal’s calculations were bad. Pal rebuts at 22-28 of his reply brief.

    Neither side’s discussion is very coherent, and I can’t make sense of what Pal tried to do or what exactly the government thinks is wrong with the analysis. As best I can tell, the government argues that (1) Pal’s calculations were wrong and (2) Pal was comparing apples and oranges by using data from a different year from the relevant year and that was generated through a different process from the relevant one. The government doesn’t develop the argument, though, and I can’t tell if its arguments are devastating rebuttals, nitpicking at inconsequential differences, or just flat out wrong. Pal’s reply brief doesn’t coherently argue that the government’s arguments are one of the latter two.

    The MSPB AJ’s decision doesn’t discuss the issue and, as Mr. Pal is pro se, the CAFC didn’t call argument and thus didn’t have a chance to ask either side to explain the numbers.

    The CAFC owes some solicitude to pro se petitioners, but (1) it isn’t required to make herculean efforts to get to the bottom of incoherently presented arguments and (2) its standard of review of MSPB decisions is very narrow and generally doesn’t get deeply into the facts. I wonder if Mr. Pal might have gotten a different result with counsel at the CAFC stage.

    The PTO apparently has a curious method of calculating “error rates.” As ‘6’ points out, the system apparently encourages people in Mr. Pal’s situation to rubber stamp things. The government explains that the agency has limited resources and rationally focuses on IPEDs rather than pass-throughs as IPEDs are easier to review. That said, it has a bit of a feel of looking for your lost wallet under the lamppost because “that’s where the light is” even though it’s not where you last had the wallet.

  57. Something IS wrong here.

    Very, very wrong.

    Regardless of how one feels about the PTO under today’s terrible leadership, for an examiner who’s obviously proven himself to be a real and great asset to the PTO over a considerable number of years; and by their own admittance; to be fired like this IS … inexcusable and unconsciousable.

    What’s an “error,” after all?

    Narrowly defined, every filing, OA, response, brief, etc that any of us have ever made could be said by another (and often is) to contain at least one “error” ; no matter how good anyone is.

    And no other place in the PTO; or government in general; that someone with this much knowledge and experience could be placed?

    Really?

    As others have said, there’s more to this unfounded firing than what the written record contains.

    Mr. Pal didn’t deserve this.

    Not by a long shot.

  58. “What are you talking about? Read the case — there is nothing there about any false accusations by anyone. ”

    I’m going to write this big so you can’t miss it.

    WHEN AN OPQA F’S UP IT MEANS HE IMPROPERLY ACCUSED AN EXAMINER OF FING UP OR IMPROPERLY “ACCUSED” THE EXAMINER OF DOING A GOOD JOB. EVERY SINGLE “ERROR” HE “MADE” WAS SUPPOSEDLY A FALSE ACCUSATION. HE APPARENTLY MADE 6/16 FALSE ACCUSATIONS AND IF INDEED HE WAS SPOUTING OFF ABOUT THE EXAMINERS HE WAS REVIEWING DOING A BAD JOB, THEN THAT MEANS THEY LIKELY DID A GOOD JOB, OR AT LEAST A JOB GOOD ENOUGH TO GET AROUND HIS OBSERVATIONS. EVEN IF WE ACCEPT YOUR 15/1 VIEW, IT DOESN’T MATTER, THAT JUST MEANS THAT IT WAS PROBABLY 6/15 THAT WERE FOUND TO BE IMPROPER ACCUSATIONS OF AN EXAMINER FING UP.

    How do you guys get through law school? This sht is going to be cake.

    “But my point is: I’d bet dollars to donuts that Focarino and the rest ganged up on Pal because his figures didn’t support Dudas’ glowing PR hogwash about the quality of patent examination.”

    I doubt it. More likely he was just a pain around the office/pissed someone off in some other way. Though there is one thing that would suggest you may be right. Specifically that the office went up .01% on its error rate. Perhaps Pal here was the reason for the .01% increase in errors, and they were found to likely be mistaken errors and he was fired for making so many bad accusations. I could see it happening, but I doubt it.

    But I agree with you that the error rate for this guy being canned was ridiculous, a mere 10% above avg? With a whole 2 cases making up 10%? Come on. Still, the guy not making errors is different from your normal errors in the patent system. It doesn’t just cost money to make up for those errors, people get fired from what I hear.

  59. In response to my comment:

    “He was probably reporting that the examination quality is as poor as it really is.”

    IQ=6 said:

    “If he did, and was found to be making false allegations then how does that help your argument? Answer: It is counter to the argument you’re trying to make. Thanks for supporting my position that examination isn’t that bad by helping defeat your own though :)”

    What are you talking about? Read the case — there is nothing there about any false accusations by anyone. Clevenger says:

    “Each of the cases in which Pal had found fault with an examiner was reviewed, and a sample of cases in which he found no fault was identified by simply picking cases by pointing to the files.”

    Nobody reports the numbers but, if these cases came from group 1760, from my experience I would guess of the 16 Pal cases “analyzed,” 15 were ones in which Pal found fault and the so-called “random sample” in which he found no fault was n = 1.

    But my point is: I’d bet dollars to donuts that Focarino and the rest ganged up on Pal because his figures didn’t support Dudas’ glowing PR hogwash about the quality of patent examination.

    BTW, given that the CAFC has — what? — a 80% error rate in patent cases that go to the USSCt, and given that the BPAI does no better before the CAFC, and given that examiners err at least 80% (see Gene Quinn’s numbers) of the cases that go to BPAI, why is it that this schlep is being gutted for a 35% error rate? That’s brilliant in comparison to CAFC, BPAI, or the examiners generally.

    Kettle to pot: “You’re lookin’ a bit black to me.”

  60. A quick check of the PTO shows he was examining patents starting around 1981 and was primary on around 1500 patents. (Seems like he shortened the name to Asok after a while).
    Chemical arts, catalysts, that sort of thing. Kind of stops around a decade ago.

    Given that he allowed 100 cases or so per year, I’d guess he just didn’t buy into the quality = reject mantra.

    Also agree that the statistics here are pretty dicey – change 1-2 cases and he’s fine.

  61. Anon E. Mouse:”Poor Mr. Pal got it wrong, alright — his colleagues who were reversing 45-50% of allowances were meeting the goal. He was only reversing 35% of allowances – there’s the door.”

    This case has nothing to do with reversing allowances. It has to do with Mr. Pal’s ability to detect examiner errors in 16 randomly chosen cases, i.e. his job at the PTO. He was actually monitored for 139 cases over a 3 month period, so a sample of 16 seems adequate (assuming it indeed was random). He failed to detect errors in 6 of the 16 random cases. PTO says here’s the door. Unfortunate yes, but one has to question whether Mr. Pal was taking his job seriously, considering he was told at the outset that his “quality review” work would be under review for the 3 month period.

  62. “Working inside the PTO would be complete hell for me.”

    Gideon, it’s hard to imagine you lasting long in any sort of civilized workplace.

  63. “Working inside the PTO would be complete hell for me.”

    Gideon, it’s hard to imagine you lasting long in any sort of civilized workplace.

  64. “He obviously pissed off the wrong person.”

    That’s what I’m talkin’ about…

    Maybe he had the guts to tell it like it is. Maybe he was someone on the inside who counseled that the “new rule package” was not a good idea.

    Some progressive minded law firm should hire him immediately.

  65. Every day brings more evidence of the correctness of my proposition that the U.S. patent system is an utter joke.

    So this guy gets 22 out of 25 reviews that say he is doing great and he gets fired?

    Hah! Perfect.

    He obviously pissed off the wrong person.

    I’m completely against job security based on longevity, but if the PTO itself gave the guy 22 out of 25 great reviews, then that alone should be a complete bar to his termination unless he did something egregious.

    They pull 16 cases and come out with 35% error rate? 25% is acceptable.

    Anybody done the math yet?

    25% is 4 cases. FOUR!
    37.5% is 6 cases.

    SIX!!!

    So this guy was sh-tcanned after a 25 year career over what amounts to 2 cases out of 16 that were randomly picked.

    Unbelievable!

    Working inside the PTO would be complete hell for me.

    Anybody notice that this poor sap’s first boss was a woman, the second boss was a woman, and the one who fired him was a woman?

    I’m not sayin’, I’m just sayin’.

    A 25% error rate would have been OK?

    Hah! Talk about low standards.

    Finally, if anybody could point me to the ACTUAL “six” errors he made, I would be indebted.

    I mean, this is precious.

    It would be better than watching sausage being made.

    Examiner A renders allowance/rejection.
    Guy B reviews and determines allowance/rejection not OK.
    Woman C reviews and says, in fact, OK.

    I would LOVE to see the actual case file, what the original determination was, what Pal’s determination was, and why his bosses thought it was in error.

    Wouldn’t it be hilarious if it was 103? I mean drop dead hilarious.

    Imagine working for the PTO and getting sh-tcanned because some supervisor thought your KSR analysis was too loose/tight.

    Hahahahahaha!

  66. “Even the most examiner hating amongst you know that examiners at least do do a decent job of weeding out the absolute most horrible of horrible cases semi-decently.”

    Wow … going out on a limb on that one.

    Actually, it is pretty easy to do … just reject all the claims in a first office action about 90% of the time, and you are going to weed out all those “horrible cases.” However, the expressions “cutting off your nose to spite your face,” “throwing out the baby with the bathwater,” and “kill them all, and let God sort them out” come to mind.

    “These guys get paid to go over a job already done and find fault. Even if they were the best and brightest that has got to be difficult to do.”
    I do that every single day … and I find fault in about 95% of the office actions I see. Actually, if I wanted to be really picky I could get that number even higher. Finding error is a tremendously easy job.

    “Oh, and random sampling is the worst thing ever for this type of thing.”
    Not good at statistics are you? Random sampling is a fundamental aspect of most quality programs — it has been around for longer than you’ve been alive.
    link to sixsigmaspc.com

  67. I suppose if someone “found”(cherry picked) 16 cases that were “effed up” the error rate would be 100%. How fair is that?

    There must be more to this story…

  68. I hope this news disturbs smart people (like Mr. Darling) as much as it does me. To me it says that PTO (mis)management are trying to get rid of legacy people who really understand how examination should be performed. Mr. Pal has come up through a time of great progress in patent law and should be treated as the rich resource that he probably is.

  69. “Given that the “best and brightest” likely get promoted to these positions”

    Where you were “given” that I don’t know, but you better “give” it back.

    JD I don’t know why you’d presume I’ve changed positions at all on OPQA, I’ve always thought that there exists way too much of a chance for arbitrary/wrong second guessing for it to be of any use what so ever. And what do you know, this guy has bad rating, as I’m sure many of them do. Why is that? Because they’re being hired to make the tough calls. Even the most examiner hating amongst you know that examiners at least do do a decent job of weeding out the absolute most horrible of horrible cases semi-decently. These guys get paid to go over a job already done and find fault. Even if they were the best and brightest that has got to be difficult to do. That’s what lawyers are doing, and they get it wrong so often I wouldn’t give them even a 80% error rate. Something around 90% might be somewhere near it.

    Oh, and random sampling is the worst thing ever for this type of thing. Absolutely ridiculous, when looking at examiner OA’s, maybe one examiner makes 90% errors and 10% good OA’s, and one examiner makes 99% good OA’s and 1% errors and the second one gets caught and has to deal with all the big sht storm? Same thing goes for reviewing the reviewer’s work.

  70. “At least this confirms that we do have a not quite so great office of folks looking over our shoulders.”

    “Mr. Pal had been with the Patent Office for 25 years and had received 22 ‘outstanding’ performance evaluations and two ‘commendable’ performance evaluations.”

    Given that the “best and brightest” likely get promoted to these positions, I wonder what that says about the rest of the Corp of Examiners?

  71. This unfortunate case sheds ZREO light on the piss poor examination process because Quality Review at the USPTO is not Quality Review, it is Allowance Review (and Prevention). The only cases reviewed by Quality Review are allowed cases. The incomprehensible and groundless rejections that cost applicants real money to respond to go unchecked.

    There is no line item in an examiner’s PAP for bad rejections, only for bad allowances.

    Poor Mr. Pal got it wrong, alright — his colleagues who were reversing 45-50% of allowances were meeting the goal. He was only reversing 35% of allowances – there’s the door.

  72. “extremely unfortunate that the agency could not have found another position for the Appellant, who seems to have many talents and has been a successful Federal employee for most of his lengthy career”

    I agree

  73. OK, we have the std. of review: will make sure to encourage the next admin to randomly sample 16 decisions of all current PTO admin folks, like ms. peggy, to scour for anything that can be second guessed as incorrect. 6/16 is all we need. what goes around comes around.

  74. “What art unit was this guy working in?”

    Based on the individuals named, it appears he was reviewing cases from TC 1790.

    “At least this confirms that we do have a not quite so great office of folks looking over our shoulders.”

    Do I detect a crack in the brick wall that currently blocks all rational thought from penetrating the mind of one this site’s most frequently (wrong) posters?

    I predict a full scale crumbling pretty soon.

  75. “He was probably reporting that the examination quality is as poor as it really is.”

    If he did, and was found to be making false allegations then how does that help your argument? Answer: It is counter to the argument you’re trying to make. Thanks for supporting my position that examination isn’t that bad by helping defeat your own though :)

    I have to admit though, I’ve been discussing cases more often with other examiners and hearing about their cases and how they handle them. I suppose if I was on the recieving end of a good portion of that I would be fairly poed. Of course I was hearing about the cases that weren’t that clear cut though usually.

  76. Somebody should have been nicer to his SPE. Seriously.

    Plus, why didn’t he just issue fewer Qaulity citations? Surely the people with 50% on review must have had their allegations be minor ones that were found to be faulty. If he just didn’t have good allegations that would be upheld then he should just chillax on making them.

    Of course with all of 10 issued patents that seem to bear his name (in 22 YEARS?), he might be prone to overrejecting just a hair.

    Though, to be sure, a mistake on his part is a big deal. OPQA apparently trashes peoples careers as their business, having bad allegations is kind of horrendous. But I mean come on, examiners make mistakes, regularly, bad rejections, bad allowances etc.

    At least this confirms that we do have a not quite so great office of folks looking over our shoulders.

  77. I has always been common understanding that IT IS IMPOSSIBLE TO GET FIRED FROM THE PTO. Hopefully, this is the start of SOME accountability on quality at the patent office – 35 percent sounds like a solid number to me.

    And about the 40-45 percent Pal alleges were just as bad or worse, I would suspect such an opinion from someone who was accused of impropriety. Hopefully, this will be the start of some accountability one the part of the Examiner…

  78. “the PTO reviewed 16 randomly selected cases from Pal’s file to determine whether he was properly reviewing examiner decisions.”

    Ha, ha, ha — they obviously cherry-picked the cases they could argue were screw-ups so they could boot this guy. He was probably reporting that the examination quality is as poor as it really is.

    Sorry, Pal.

  79. “The Federal Circuit rejected that argument finding “no requirement that the agency must use any particular method for picking which work performed … will be subject to test.””

    or

    “similarly situated employees had mistake rates “as high as 45-50 percent” that “were never rated unacceptable.” That argument was not addressed by the Federal Circuit.”

    translation: the agency may be arbitrary or capricious.

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