by Dennis Crouch
I am generally in favor of additional Congressional oversight of the U.S. Patent & Trademark Office – this is especially true because members of the House and Senate Judiciary Committees tend to be smart, well informed, and act with intention to improve the patent system.* Although partisan politics do come into play, much of the focus tends to be on real issues and real solutions. The oversight process forces additional USPTO transparency and is the standard mechanism for getting information from Executive Agencies. On this point, I will note that the information exchange is often done in the background lead-up to the actual hearing — thus, although a hearing might not be too exciting or informative, the associated deadlines force the new communications.
The House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet has set its next oversight hearing for Tuesday, September 13 at 1:00 pm E.T. Michelle Lee is expected to testify both about general USPTO operations as well as the recent Inspector General’s review of potential time and attendance fraud. Although the subcommittee chair – Rep Darryl Issa – is a bit combative and divisive, he is also always well informed and practically minded. The hearing is also expected to address USPTO’s implementation of the America Invents Act (AIA); abusive patent litigation; and patent quality — all within the context of promoting innovation and creating American jobs.
USPTO Director Michelle Lee will testify at the hearing. No other witnesses have been released (and it is likely that none-others will be present).
On the issue of the Inspector General’s report, I substantially agree with Matt Levy’s Washington Post Letter titled “Cries of ‘fraud’ at the patent office are overblown.” Working out the numbers, Levy finds the average unaccounted-for hours are 6-minutes per day. I would additionally add that most of us in the patent law industry are focused more on whether patent examiners are doing quality work in a timely manner — that was happening, but the examiners were essentially a bit too efficient as judged by the parallel time and examination-quota requirements. My largest caveat is that the unaccounted-for hours were not evenly distributed as implied by Levy’s letter. Rather, the IG report highlights the fact that a relatively small number of examiners claimed a large percentage of the total unaccounted-for hours (based purely on a computer database analysis). I would think that those particular examiners should be reviewed to ensure that there was no actual fraud. The IG report suggested (but did not actually state) that such a review would be improper under the law, and I expect that one aspect of the hearing will focus on that question.
Levy’s also makes the important point that the fraud charges in the media are likely to shift attention away from the patent quality improvements that should be the agency’s major focus.
= = = = =
* My position may well change if major control shifted to, for instance, the Energy & Commerce Committee.
This needs to be reposted at the top so no one misses the chance to bask in the irony.
“Believe me – I am fully with you that the Office (and the examiners in the Office) should not be making the internal metric system into a problem for me and my clients, but there is a place you need to recognize and that place is called the real world.” -anon at 5.1.1.1.2.2.1.1.
Enjoy!
No irony whatsoever, Ben.
I make the distinction quite clearly – are you having difficulty following it? ( i would not be surprised).
Upvote.
…and we see why “upvoting” means absolutely nothing.
Thanks for the example, temprand.
Is your life really so devoid of . . . meaning, activity, anything, such that spewing the same thoughtless talking points and ad hominems is absolutely required? Would it help if we set up a Disqus channel where you and MM and a few others could just post non-stop? It would free up room here for some actual, civil discussion.
I am not the one “spewing” here, temprand.
You upvoted a meaningless post just because “anon.”
I merely pointed out the banality of your action.
Maybe instead of mindlessly “upvoting,” you actually take the time to read what I actually presented, understand the points presented, and maybe – just maybe – work up to the point that you can contribute something meaningful.
THAT would be the “civil discussion” that you claim that you want, while merely “upvoting” someone else’s mindlessness.
The report only shows that some Examiners claim to work even if they are not physically in the Office or if their computer is not on. The job of Examiners is mostly reading. You don’t need to have your computer on to read (some people still prefer reading prints). You do not need to be at your desk to be reading. I think the IG should have remembered that Examiners are not assembly line workers who can only work when present on the line.
PiKa,
This is more about following the rules – examiners are required to be able to support their working hours – even if reading.
These rules are in place because fraud is rather easy to perpetrate.
There was “fraud” when the examiners were not required to “establish a digital footprint.” Having your computer on means jack squat. It can be on and the examiner can be Netflixing and chilling. The computer could be off as PiKa notes, the examiner could be reading a stack of references.
Who cares? When I review an OA I don’t care one whit how much time the examiner spent on it, or claimed to spend on it, or got paid to spend on it. I care if it’s correct.
Get rid of the bi-weekly accounting system. Give the examiners yearly goals. Check in on them at the end of each quarter to see how they’re progressing toward the yearly goal. Stop having the examiners waste time recording their time, and SPE’s wasting time reviewing their time sheets. It’s all a waste of time. Time that could be spent examining.
You should care (whether work is being done or not and still “being claimed”) because those millions are coming from Your clients (the Royal “You”), and is – in fact – fraud.
Yes, it would be a “wonderful life” if no one had to be concerned with actual fraud – but that is just NOT this life.
The work is being done. The report indicated that most of the examiners with unsupported time were meeting or exceeding their production goals.
Maybe the work product would be better if the examiners spent the unsupported time at the office, maybe not. The quality of the work is a seperate issue.
…the report…
It is NOT just a matter of “the work being done,” Ben.
Clearly.
You guys have to remember that anon has OCPD. He’s not an ordinary observer on the side of the street so to speak.
Lol – just like you are a guy living under a bridge, right 6?
(any time you want to stop with the baseless med/sick ad hominem and actually address the contents of my posts, please feel free)
I don’t care how much time the examiner spent on the OA. I just don’t care. I don’t pay for any amount of their time. I pay for the examination. If the examiner gets 10 hours to produce a FAOM and spends 2 of it reading the app, and then finds a reference in the first 10 minutes of searching that knocks out 19 of my 20 claims, I don’t expect the examiner to spend 6 or 7 more hours searching “just because” that’s how much time is “allotted” to the task. I don’t care. Same with the converse, if the examiner has to spend 20 hours finding the best art. I just don’t care. What I care about is the quality of the references cited (are they the best references?) and the quality of the OA (does it meet the legal requirements for rejecting the claims?). That’s all I care about. The amount of time that was allocated to do it and/or the amount of time it actually took the examiner to do it and/or the amount of time the examiner claimed it took to do it are IRRELEVANT.
Get rid of the requirement for examiners to record their time. Give them a goal for the year, and tell them to meet it. It really is that simple. Which is probably why it’s never going to be implemented because: 1) PTO management is brain dead; and 2) POPA leadership is brain dead.
For that its worth, this is de facto the system that exists at the office (for “fully successful”, non-probationary examiners). It is all but desctibed as a perk by recruiters.
We frequently hear from commenters on this site that the “one size fits all” and the “widget” mentality applied to examining applications is terrible. Well, it is. So get rid of it.
You may not care – but even as you recognize that we are NOT at the “smart” system now, you SHOULD care because that money comes from only one place – as I have previously explicated.
If an examiner is allocated 10 hours to do a FAOM in one of my cases and spends 6, I don’t care. I don’t care if he/she spends 6 and claims 50. Same as I don’t care if the examiner is allocated 10 hours and spends 15 or 20. And claims 10. Or 5. Or 100. I don’t care. It’s irrelevant. I paid for the application to be examined. What I do care about is the quality of the examination. If getting rid of the hours/BD system the PTO uses will give examiners more discretion to use their judgement as to how much time to spend on each case, I’m all for it. In the meantime, I don’t care how much time they spend. Or claim they spend. It’s irrelevant.
If examiners truly are professionals, get rid of the time keeping, and give them the discretion to use their judgment to examine each application as they see fit.
Yet again, you should care – to the extent that the money paid to the examiner based on FALSELY provided hours comes by proxy through innovator fees.
You keep on mentioning that you don’t, while retreating to the (correct) notion that you don’t pay for hours, you pay for a completed service. But you keep on neglecting the point that it is the Royal you that is being fleeced because the Office cannot make the millions of dollars bilked from false statements of hours not actually worked appear out of thin air, and so on reality (de facto, as it were), innovators are NOT getting what they paid for.
Your lack of caring only perpetuates the scam.
Believe me – I am fully with you that the Office (and the examiners in the Office) should not be making the internal metric system into a problem for me and my clients, but there is a place you need to recognize and that place is called the real world.
The fraud and theft of millions in examiner pay that is not truly earned traces back to only one single source – and you should very much care about that.
Further, the word you use (“professional”) – carries with it the notion of accountability – you need SOME way (besides just wishing) to make sure that THAT happens.
Anon is super worried about 20$ on his applications being “misspent” while everyday ho hum total waste in the PTO probably is equivalent to at least 200-600$ worth on avg, if not more. Positively livid.
It is not the $20, 6, but rather the aggregate millions.
Oopsie for you.
Which works out to 20$ idi ot.
“which works our to”
No.
That’s rather the point, 6.
You do NOT get to “work it out” like that.
Here’s a counter example: What is a single dollar to you? Am I right?
Now, YOU are to give a single dollar to every man woman and child in the US.
Step up and hug your own “logic” 6.
AAA JJ, agreed.
The important thing ultimately is that the work be done with quality, not whether the examiner spent time at his computer rather than at the beach.
You quite miss the point that in this reality Ned, that any time not properly earned and yet paid out is money directly taken from innovators for work not done.
Would a different system be better (for all) ?
Sure.
But that is just not the current reality.
And turning a blind eye to the egregious nature of this theft and fraud makes you a part of the problem.
You keep talking about “reality,” but seem to be the most disconnected from it on this blog. You stick to a rigid script, regardless of any valid considerations (i.e., reality) brought up by others.
Not at all temprand – I do notice that you never seem to want to actually contest what I have to say in either a legal or factual manner.
We both know why that is, eh?
temprand, he IS on a script. or maybe a scrip, it’s hard to tell sometimes. don’t bother arguing, just ignore the comments, same way comments from certain other high-volume commenters are best ignored.
Except not Atari Man.
You too can do more than the baseless ad hominem (like maybe address the points).
It’s just too easy to close your eyes to those points, though and mouth the “it’s a script” line….
Your post reminds me of the three monkeys.
Care to explain why you are determined to conflate “work done” and “hours of presence”?
Not conflating anything of the sort Ben.
You do know that you have more than one requirement, right? You have a throughput as well as a time requirement: hence, no conflation.
Try to connect the dots before you are so eager to try to take a shot at me, Ben (your shots just consistently miss – and by miles)
There is a time requirement, but no reasonable person would confuse that with the “work done”.
Great – I am not confusing (nor conflating) the two.
Wake up Ben.
>>This is more about following the rules – examiners are required to be able to support their working hours – even if reading.
What is your evidence for this?
Oops – 5.1.1.1.1.1 goes here
That appears to be incorrect.
The report says that only full time teleworkers are required to be logged into the network during work outs (Footnote 20, 38).
Nothing about examiners at large being required to ‘support’ their time.
You are so intent on parsing things, that one has to wonder what your motives are, Ben.
You do realize what fraud is when you state that you have worked “X” hours (to get paid overtime, for example) and you have not in fact worked “X” hours, right?
And please, do not engage in the error of “averaging” the different workers related to the different tails of the normal distribution curve.
My motives? I just enjoy watching you run around with the goal posts.
Except I am not the one running around with goal posts – I keep on having to refer people back to the report…
The report only insinuates that some Examiners may be lying about their working hours.
It does far more than that PiKa.
“examiners are required to be able to support their working hours”
idk who told you that nonsense. There is nothing in the pap or otherwise that I’m aware of requiring such nonsense.
Presumably the same way concluded that the office has ongoing SAWS-like programs, that 9/11 was a CIA operation, and that flouride is a mind control chemical used to control the American public.
Lol – except not.
You do know that the Office itself oopsied and volunteered and admission that SAWS was only one of many such programs, right?
This is just not some wild-haired “conspiracy” thing, guys.
“You do know that the Office itself oopsied and volunteered and admission that SAWS was only one of many such programs, right?”
Quality control programs in general, yes. But your paranoid mind cannot comprehend such things! It must be that there’s double top secrit programs that 99% of examiners don’t know about!
I am not the “conspiracy” one, 6.
What is it with the Office that they refuse to allow sunlight into these “programs?” And when some light breaks in (like what happened with SAWS), the Office attempts to scuttle the peering eyes of the public by closing down that (particular) program…
The Office track record is what it is, 6 – wake up son.
“What is it with the Office that they refuse to allow sunlight into these “programs?””
For the most part there is “sunlight” into these “programs”. If there’s anything you want to know in specific I can see about finding out for your dumas.
“And when some light breaks in (like what happened with SAWS), the Office attempts to scuttle the peering eyes of the public by closing down that (particular) program”
Them saying “fck it, we never use it, and it isn’t worth everyone getting upset about” isn’t really all that nefarious idio t.
“For the most part there is “sunlight” into these “programs”.”
LOL – except NOT.
The last time a little bit of sunshine crept into SAWS, the Office went into a panic, blurted out its volunteered admission, AND CLOSED DOWN SAWS.
(and it is clear that you are not correct about “never using it” as the sunshine peeked in BECAUSE it was being used)
More of your stellar “logic” at work I see…
“Rep Darryl Issa – is a bit combative and divisive, he is also always well informed and practically minded.”
Seriously? He’s an idi0t.
And what about district court oversight of the PTAB?
anony, do you have any idea why three patent lawyers are necessary to make the call on patentability in the PTAB while only one judge is necessary to make the call in court (unless one tries disputed facts to a small jury)?
I would not be adverse to moving patent revocation actions into the district courts, with full discovery, etc., but with procedures that would prevent a counter-suit for infringement while the action was pending — so long as damages were tolled — and with the right to trial by jury. The current PTAB members, to the extent of any excess numbers, could be reassigned as magistrate judges to revocation action hot spots where they would be under the supervision of judges.
I would not be adverse to moving patent revocation actions into the district courts, with full discovery
What “discovery” relevant to patent invalidity is currently not available before PTAB?
do you have any idea why three patent lawyers are necessary to make the call on patentability in the PTAB while only one judge is necessary to make the call in court
Are they “necessary” or is it just a concession to the folks who couldn’t abide having a single PTAB patent lawyer making the calls?
MM, I think the most critical thing missing from the PTAB is the lack of live testimony of expert witnesses.
Also if one moves to the District Court, all grounds of invalidity now come into play, including 101, 112 and prior art that is not necessarily printed publications and patents. There would be no question that there would be res judicata between the parties, which would achieve what IPRs say they wanted to achieve, full resolution of validity of a patent in one forum.
>I would not be adverse to moving patent revocation actions into the district courts, with full discovery, etc.
Wouldn’t this massively increase the time, cost, and lawyer fees to revoke obviously invalid patents?
patentcat — there would be a lot more due process, but if the matter was confined to validity, there would be a lot less discovery than ordinary infringement cases unless one were to get into inventorship or some public use prior art in China, thanks now to the folks-that-we-can-trust who gave us the AIA.
Obviously invalid?
Rule 12(b) motions would quickly sink “bad” patents.
But if it gets down to obviousness, I daresay, we need to slow down quite a bit from the rough justice of the PTAB. Obviousness really needs to be submitted to the jury based upon live testimony of competing experts under cross-examination. Credibility is everything.
>if the matter was confined to validity, there would be a lot less discovery than ordinary infringement cases
So, to answer the question, it would massively increase the time, cost, and lawyer fees to revoke invalid patents? Am I reading that right?
>But if it gets down to obviousness, I daresay, we need to slow down quite a bit from the rough justice of the PTAB. Obviousness really needs to be submitted to the jury based upon live testimony of competing experts under cross-examination. Credibility is everything.
I don’t necessarily agree, but that’s difference of opinions.
However, you’re suggesting submitting evidence to a jury, who likely have no skill in the art, to decide obviousness? I’m just hesitant that this is going to less fact-finding and more hoodwinking people with little to no technical background.
Patentcat, what price then, Liberty (and property)…?
It is not up to you (or even the government) to violate due process or engage in improper takings.
There is more than just a “difference of opinions” here.
And the jury is exposed to both sides: unless you think that the entire jury system should be revoked…
“Obviousness really needs to be submitted to the jury based upon live testimony of competing experts under cross-examination. Credibility is everything.”
Not really. Having twelve jurors listen to one guy billing the accused infringer $1175/hr to “opine” that “The patent is clearly invalid!!!” and another guy billing the patentee $1300/hr to “opine” that “It’s clearly non-obvious!!” is not really that great a system.
Credibility is everything? Are you serious with that? Both parties will find somebody, anybody, to say what they want said. That’s hardly credible.
Not necessarily true, I’ve seen quite a few cases on these very boards where the testimony on one side stood practically entirely unremarked upon by the other side and carried the day.
Can you remember the name(s) of any of these “quite a few cases where the testimony on one side stood practically entirely unremarked upon by the other side and carried the day”?
If the accused infringer retains an “expert” who will testify that the patent is obvious, I can’t imagine a single case where the patentee would not hire its own “expert” to testify that the patent is non-obvious. That would be malpractice.
Again, can you name one of these cases?
“Can you remember the name(s) of any of these “quite a few cases where the testimony on one side stood practically entirely unremarked upon by the other side and carried the day”?”
Not off hand, but more will come on down the pipes as the years go by. I’ll keep you in mind.
And also I’m not generally talking about “testifying” as to the legal conclusion of obviousness. I’m talking about “testifying” as to facts or the meanings of terms to one of ordinary skill.
AAA JJ, the fact that some experts are w$ores and others really believe in what they say soon become apparent when they testify.
I find that a highly dubious notion.
Placing PTAB judges in a special master / magistrate role would correct the constitutional harm, if that’s what you are getting at Ned.