by Dennis Crouch
On November 18, the Congressional Judiciary an Oversight Committees will jointly hold hearings on the USPTO Telework Scandal. As with many beltway-scandals, this one is double-dip involving both the scandal and then the cover-up. Basically, USPTO managers allowed teleworkers to violate their time-reporting rules and then USPTO management attempted to hide at least some of those abuses from the Department of Commerce Inspector General after an anonymous whistleblower spilled the beans. [NOTE – The USPTO hotly contests the notion that it attempted any coverup]
[Hearing Notice and Written Testimony] [Testimony of Inspector General Zinser]
The Obama Administration appears to be shielding its USPTO Director Nominee Michelle Lee and is instead sending Patent Commissioner Margaret Focarino to testify. The USPTO’s written testimony offers little information other than general statements of quality, performance, and seriousness. The report offers no indication of whether any employees were fired, sanctioned, or prosecuted for reporting time worked without actually working (or encouraging that approach). Further, even years after the PTO management became aware of the issues, the agency is still only in the process of “clarifying what steps supervisors should take if they suspect any misconduct.” [Focarino Testimony]. It will be interesting to see whether the committee members will allow the PTO to keep its comments at such a “high level of generality.”
Following Commissioner Focarino’s approach, Esther Kepplinger argues against transparancy — noting that many of the USPTO problems can an should be dealt with “outside the public eye.”
Bill Smith offers useful testimony on the count system and RCE-abuse. [Smith Testimony] Smith notes that the count system offers some incentives for examiners to engage in bad or abusive behavior to ensure that they remain highly paid. Smith proposes a change in the system with what he calls Compact Prosecution 2.0.
I’m curious what evidence there is that end loading is conclusive evidence of examiners slacking?
What if, just what if, end loading is a result of the count system not sufficiently reimbursing examiners for their work?
Stumped, you have left me stumped: you are looking for evidence that evidence is conclusive evidence…?
Do you mean instead to challenge whether end loading is evidence at all? Do you mean that you want more than just the evidence of end loading? What would you consider “conclusive evidence?” Is slacking here a criminal offense meriting “beyond reasonable doubt?”
I’m looking for evidence of causation. There is no evidence of causation. Nothing links the two together. What is presented is “there exists end-loading”. We’ll “magically” link it to “poor quality” as, logically, it appears that it is something that should result in quality issues. Apparently, it seems, USPTO management hasn’t addressed that as the problem as it’s been a problem since the beginning of the count system – that’s a logical assumption. I’d consider this a report of poor quality. I’m surprised someone would pay money for that.
There is evidence that indicates that there is end-loading. There is no evidence that links good quality product with end-loading nor a bad quality product with end-loading. There’s nothing hard about the concept. Causation is something most reasonable lawyers should understand. The real question is whether examiners who end load are more-likely to provide a better product than those who don’t end load for the quarter. Furthermore, if end-loading is such a “serious problem” why hasn’t management attacked and tackled it by making bi-weeks as important as quarters and rating examiners on a bi-weekly basis?
Furthermore, there is clear evidence that the USPTO does have retention problems due to the Academy attrition rates and examiners that stay past a 5 year mark. Are these the people the USPTO should be retaining or not? Are the people who are staying those who shouldn’t be retained? Why are they staying? Are those others leaving due to a lack of time for examination or a bad workplace?
A lot more questions are presented than answered.
Also, how is end-loading slacking? If I understand the system correctly an examiner can be rated fully successful even if they submit their work quarterly instead of bi-weekly? If that is the case then end-loading can’t be considered slacking – especially if you can be rated fully successful. It’s an assumption to assume as it’s logical to assume that if it does result in poor quality examiners would be penalized for such action by management? Even by the union? If they aren’t penalized then … just an assumption.
You’ve never heard the phrase “haste makes waste”…?
You seem to want to ignore some pretty straight forward aspects of the human condition with your labeling of “assumption”…
While there is no doubt that some people can surely perform well by not doing anything until the last minute, this discussion point here is aimed at the larger human condition for which your own assumption ignores human nature.
Do you really believe people who end-load quality for over time at the PTO? (Hint: Most end loaders probably won’t qualify for OT. It appears then the whole investigation is a 1+1=3 type of deal). I mean, really, do you think so? I’d be fairly surprised that examiners who end load on a quarterly basis qualify for overtime. That’s one of the premises of the investigation.
You’re trying to generalize something with improper support.
This is not about people performing well by not doing anything until the last minute. If it is you’re introducing the concept and hypothesizing on what may be based on what fits your fancy. You lack understanding the fundamental difference between working diligently and handing in your work at the last minute versus slacking and handing in your work at the last minute.
I mean – would it be appropriate to assume that all attorney responses at a certain time period to examiner responses aren’t worth the paper they’re written on? That’s generally what you’re suggesting by the definition of the word ‘slacking’.
Not at all Stumped.
Consult your dictionary (and you are apparently not using the term “end loading” correctly either – which might help explain why you don’t seem to understand why “slacking” here IS synonymous with “end loading.”
Your “fundamental difference” is just not in the meaning of “end loading.” I am sure that no one has ANY problems with diligent examiners that simply happen to finish a larger number of items at the end of their cycle. But you also seem to ignore the fact that better work habits do not include this type of technique as a general rule. Sure, there may be some people who can consistently work well with putting off the finishing touches to a large number of cases at the end of a cycle, but human nature dictates otherwise (so like I posted, it is you that must ignore human nature in order to support your viewpoint)
Really? Maybe you could explain why? Or do you enjoy a conclusory statements so much that, almost, your whole point of view is based on conclusory statements without factual evidence?
Apparently you’re not using the term “end loading” correctly or, even, based on how the report defines it. There, an equally conclusory statement meeting your conclusory statement usage.
It’s sad and pitiful that you’re talking about human nature. Is this human nature exemplified by your work ethic? If not you’re a fairly ridiculous and condescending type of person as it appears that you’re applying such obtuse logic to behavior of others other than yourself. Kind of absurd.
You accuse of conclusory when I suggest you look at the dictionary (hint: the dictionary supports what I am saying).
Evidence – you use that word, but I believe that word does not mean what you think it means.
(perhaps the simple exercise of you looking up the definition of the word ‘slacking’ would be a good start for you to find that “causality” that you are searching for)
Hearing going on live:
link to oversight.house.gov
Smith’s written comments are informative, but somewhat painful to read; apparently this document wasn’t proof-read by anyone before being submitted. Near the end of his comments, he says of the PTO’s telework program, “As understood, the current agreement, in essence, has made the program an entitlement, not a right.” Perhaps he meant “an entitlement, not a privilege”?
Completely agree. This one had me laughing: “I joined the then
Patent Office in September of 1972 fresh out of engineering school. I
progressed through the ranks and achieved the rank of Primary Examiner in 1972.”
That is the fastest progression I’ve ever seen, becoming a primary in on a few months (not actually possible). Also, if it was “the then Patent Office” what exactly is it now?
“This one had me laughing: ‘I joined the then
Patent Office in September of 1972 fresh out of engineering school. I
progressed through the ranks and achieved the rank of Primary Examiner in 1972.'”
That mistake, on the first page of his comments, makes it hard to take him seriously. He appears to have lost his proof reading skills after working too long at the PTO, and not regained them in private practice. Shame really. Just clack away on the keyboard, hit print, sign and send out. Typical examiner work ethic.
The “then Patent Office” is now called the “Patent & Trademark Office.” I believe he was being accurate with that statement.
He said 1972 twice.
Alas, that sentence is as clear as any in 92% of Office Actions (not counting boiler plate pasted in from the MPEP).
I read the boilerplate. There’s often a random word added or two added in there LOL.
Roger that. Did not mean to imply the boiler plate was perfect. Just that it was not included in my statistical analysis. 🙂
Is it true that the Committee is letting some of the PTO’s witnesses call in from home to testify?
That Bill Smith guy, who I originally was about to write off as somewhat of a kook after his initial typo regarding when he joined and when he made primary (he apparently did both in 1972, and got master’s rating before getting primary) is actually a pretty cool dude. And he appears to know his stuff.
“However, it is not surprising that the allegations exist since, because of the anachronistic management and time accounting systems that patent examiners continue to work under,”
“The solution is not to dismantle the current PTO telework program but, rather, to modernize compact prosecution and the patent examiner count systems to create a more positive work atmosphere and allow for more efficient monitoring and management of the workforce. ”
^^^^ Deep words.
I already told mah popa to get on similar.
That said, his suggestion that even more paperwork in the form of timekeeping more specifically than we currently are is lolable to say the least. He’s right that there would be some benefits to it but I doubt very much that it is worth the trouble.
“Patent examiners should be invested and incentivized to reach the ultimate conclusion of each case by having a continuous conversation with applicant with no dead zones. ”
Perhaps that is the case, indeed, I would substantially concur. But he fails to talk much about the often induced “dead zone” that the applicant’s themselves make by taking 6 mo to respond.
“4. Modernize compact prosecution by eliminating final rejections, after final practice and the resulting dead zones to allow for a truly compact and efficient examination process. ”
He may be right but he puts nothing in its place. Can’t do that bro.
“No one person has a monopoly on good ideas and it is easy for applicant
and/or the patent examiner to become locked in to one’s beliefs and not clearly
understand the other’s true position.”
A situation that of course attorneys are paid a lot of money to learn how to mitigate and dissolve, but which the new crop thereof seem nearly entirely incompetent at doing.
“The world of patent examining is so very different and infinitely more complex now than then, yet the PTO and POPA keep nipping and tucking at an anachronistic system instead of taking an objective step back and understand that a significant overhaul is needed. ”
I agree with him entirely on that, but he doesn’t make any suggestions worth a dang.
There are some good ideas floating about. Redefine “Compact Prosecution” to mean that, where applicable and strong, 101 issues get resolved before requiring examiners to do the far more time-consuming work of making 102/103 rejections. Like the decision or not, Alice opens the door to true compact prosecution for many cases. Focus on independent claims, leaving the dependent claims as an afterthought. Implementing just those two measures would free up so much time that the examiners would be able to do focus on doing a proper examination where it should count. And speaking of counts, Smith has a good idea. You get a count when the case issues, is abandoned, or appealed. That’s it.
You get a count when the case issues, is abandoned, or appealed. That’s it.
This would require a limit on the number of bites at the apple given to applicants. Otherwise, an applicant/attorney could punish an examiner who was making good rejections by refusing to appeal or abandon.
You simply cant have a count system at the same time as an hours system without it appearing like something is wrong. Either people make their counts, in which case it appears like they are not working the difference in hours, or people make their hours, in which case it appears like they are twiddling their thumbs for the difference in counts.
In fact, the majority of examiners work more hours than they are paid to get their counts. Smith is correct that having counts are all examiners will work for, but hes incorrect about it being the lower bound. Production would go way down without counts, or with the change he suggests.
“Production would go way down without counts, or with the change he suggests.”
Amen to that. The PTO tried this in the 1990’s with what was called “The Re-engineering Lab.” They put a bunch of examiners over in like Crystal Square 4 or some other such building where there weren’t any other examiners, put them in “teams” and gave them no production requirement. None of the examiners did anything. It was basically a year long vacation for all the volunteers.
Find an old timer, if there are any still around, and ask them about it. You’ll probably give them a chuckle or two just by asking.
“Amen to that. The PTO tried this in the 1990’s with what was called “The Re-engineering Lab.” They put a bunch of examiners over in like Crystal Square 4 or some other such building where there weren’t any other examiners, put them in “teams” and gave them no production requirement. None of the examiners did anything. It was basically a year long vacation for all the volunteers.”
Why would they do this with no management present? The whole point of management is to manage. Of course if you put no management over people they will run amok.
Like Congress
“You simply cant have a count system at the same time as an hours system without it appearing like something is wrong”
That’s the fundamental problem at the heart of all this. Just fundamentally bad from the very beginning though it’s just now becoming big enough of an issue for anyone to take note. It has always been simmering just under the surface, it’s only in times of scandal or disaster that anyone pays any attention to these things.
“In fact, the majority of examiners work more hours than they are paid to get their counts. ”
Sounds about right.
“Smith is correct that having counts are all examiners will work for,”
But that’s only under this system.
“Production would go way down without counts, or with the change he suggests.”
That is my overall impression as well. Though there is a small outside chance that some apps would get through prosecution faster, his suggestion is not a magic bullet. It’s just more squeezing on his hypothetical balloon.
Some of us took note a long time ago.
Perhaps you should pay better attention.
Um I knew it since the first day I started work mr. “I don’t know how to read”.
Your insult aside, your comment of “just now becoming big enough” is simply not correct, Mr. “I knew it since the first day – but have long tried to blame the applicants anyway.”
In other words, you are once again busted for trying to claim a position that cannot be claimed.
“In fact, the majority of examiners work more hours than they are paid to get their counts.”
Not only do you not offer for this, but this scandal (and the scandal with the Appeal staff) paint a very different picture.
And even for argument’s sake, if examiners are not recording the actual hours necessary for the examination performed, only they are to blame for such under-reporting.
Why would they under-report? If – as you suggest – the amount of work required grossly exceeds the amount of work allowed, the proper action is NOT to doctor the time, but to report the time accurately and deal with the consequences. If the time allotted is so out of alignment, then your POPA should protect you, right?
As it is, with the scandals flying about, with examination quality remaining questioned on top of those scandals, the whine here is just not compelling.
There is no way for examiners to record hours beyond 80 on their time sheet except for comp time or overtime. There is no space on the time sheet for “voluntary overtime,” as it’s called.
…the form won’t let me…?
That is some seriously weak lemming ‘thinking’ there RH.
Not only do you not offer for this, but this scandal (and the scandal with the Appeal staff) paint a very different picture.
The appeal staff are not examiners. My evidence is first hand – I have witnessed people being here and know people who literally stay here overnight to work. The vast majority of people in their first year are working over 40hrs a week with no overtime pay.
Why would they under-report?
There is no reporting for “voluntary” overtime. There is reporting for overtime, but claiming overtime necessarily increases the amount of counts you must do or you will be fired, which is the problem they are attempting to solve by staying after anyway.
Smith is correct that counts are a “floor” but they are a floor that is set above the 40hr workweek for many people. Show me an examiner that is claiming exactly the number of counts to not get fired for their 40hr workweek and I’ll show you someone who is actually working more than 40hrs.
the proper action is NOT to doctor the time, but to report the time accurately and deal with the consequences
The consequences are getting fired. If you try really hard and don’t make your counts, even if you work double your hours, you’re still getting fired.
As it is, with the scandals flying about, with examination quality remaining questioned on top of those scandals, the whine here is just not compelling.
It’s not my whine, as I’m not one of those people. I am simply stating fact: Remove counts and instead go to a straight 40hr workweek and watch the pendancy climb.
The count system is what makes the office productive. It forces a significant amount of the examining corp to work for more hours than they are paid for. It has the side effect of actually paying people who are better at the job an amount commensurate with the work they perform (gasp), something the bonus system here does not do.
This has been the cry of the examining corps, and their mouthpiece POPA, for a long time: examiners have to work voluntary overtime just to make production.
It’s simply not true. Somewhere around 60% of the examining corps receives bonuses for exceeding their production quotas. If they are working “voluntary overtime” it is to get a bonus, not “just to make production.”
Sorry Apotu, not buying the old “wear down the examiner” B$.
Applicants are after all constrained with no new matter. If you do the job right the first time, it simply does not matter how many bites the applicant wants to take, as the application will have been examined, and any further examination will be merely cut N paste (and the corps is already well versed in that, eh?)
“If you do the job right the first time…”
It’s very easy to growl “just do your job,” but that misses the point, anon. A specification can be very long and there’s no way for an examiner to predict how an applicant will amend their claims. Examination and searching takes time, and shouting at examiners to do their job does nothing more than make you sound like you don’t want to take responsibility for your side of prosecution.
It IS very easy for me to so growl, and I have never said that the examiner job was easy.
But it is still your job and the point is that you really DO need to do your job right.
On top of that, whining like you are doing now and attempting to spin this around makes you look like you don’t have a clue as to whose job it is to exam. There is NOTHING in anything that I have ever posted to support your claim that I dot want to take responsibility for my side of the prosecution.
Ignore the anon. He’s arguing to argue and is arguing for no position.
Stumped,
Your bizzaro “ignore” advice, sounding Oz-like “pay no attention to the man behind the curtain” rests on a false statement.
There very much is more than “just to argue” here.
Wake up.
Smith is somewhat correct. Finals are problematic, but heres the system I would make:
The case comes in and is assigned to an art unit examiner for prior art purposes. That examiner and the applicant have a conference in front of a tech-center person purely over 101 issues. The case does not advance and additional fees are not necessary until 101 is solved. Then there is a 112 construing conference with the art unit supervisor or by a primary (defining terms for the record and construing means-plus). Then there is a prior art search. In following amendments, the examiner can choose to conference on 101 again, and either the examiner or the applicant can seek to conference on construing new terms or limitations. Neither the 101 nor the 112 construction issues are appealable within the office. Other 112 issues are appealable to the board, along with 103 issues.
This eliminates searching claims that are actually abstract ideas,which is a big time saver, confusion about broadest reasonable interpretation, as well as setting the record for the future.
An initial 101/112 analysis might be helpful in some arts, but not in others. In most chemical cases, a mandatory conference to say there are no 101/112 issues would just be a waste of time.
Wasn’t Myriad a chem/bio case?
Sure, but that’s not representative of the majority of TC 1600/1700 cases. There are tons of cases about small molecules, the petroleum industry, chemical reactors, etc. etc. that usually have few 101/112 issues.
Bill Smith’s suggestions are far more effective and useful than some witch hunt for butt in seat hours that ultimately ends up exactly where it started – with the same system and some more effort to ensure butt in seat hours instead of production.
“Following Commissioner Focarino’s approach, Esther Kepplinger argues against transparancy — noting that many of the USPTO problems can an should be dealt with “outside the public eye.””
To an extent I have to agree with that. Seems perfectly reasonable for the agency to handle its own internal business. You can’t have every member of the public scrutinizing every management decision as they’re not always so clear cut.
What was President Obama’s running platform again…?
Lol, he’s supposedly all about transparency but as people have pointed out he is one of the least transparent president’s in all US history.
Though he is transparent about many things. And I’m generally in favor of more transparency. But you don’t go poking into all mgmt decisions everywhere or every primaries decision on every patent. It would just be absurd and chill the decision making process.
The only thing it would chill is bad decision making…
Isn’t that the idea behind transperancy in the first place?
“The only thing it would chill is bad decision making…”
Not necessarily. Numerous studies in other contexts I’ve seen shows that generally transparency in management decisions merely skews decision making one way or another, not necessarily all “good”. Sometimes it even leads to absurd results.
At a certain point good management is just something you have to let managers do, then you can review whether you like how the job they did turned out.
At a certain point good management is just something you have to let managers do, then you can review whether you like how the job they did turned out.
Record backlogs at the Patent Trial and Appeal Board. I think the reviews from at least one group of stakeholders are in.
A very tiny tiny sub-set of “stakeholders”.
It’s hardly tiny. And if 75% of the applications in which a pre-appeal or an appeal brief is filed weren’t re-opened, it would be pretty sizable.
“At a certain point good management is just something you have to let managers do, then you can review whether you like how the job they did turned out.”
And when the review results in you not liking the job they did, what next? More bonuses, bronze medals, and reports trumpeting record breaking outstanding quality work being done? We’ve all seen that movie.
“it would be pretty sizable.”
We saw the numbers the other day, what was it again? Under your proposed tomschemery you’ll hit what? .02%? 1%? Bro, you and your “appeal everything” group belong to a tiny minority of malcontents no matter how you slice the cake. It isn’t like 10% of all cases are going to appeal or something like that.
“And when the review results in you not liking the job they did, what next? ”
Whatever their boss thinks. On up the chain to the people appointed by congress/the prezzy.
“It isn’t like 10% of all cases are going to appeal or something like that.”
Could that be because 1) 75% of the cases that are appealed get re-opened by the examiner and/or 2) many applicants resign themselves to “trying to work with the examiner” rather than wait 3+ years for a decision (and 7+ years for a patent to issue)?
Put in a rule/law requiring a decision in ex parte appeals within 1 year of paying the appeal brief forwarding fee and see what happens to the number of appeals. My bet is it would skyrocket.
“Put in a rule/law requiring a decision in ex parte appeals within 1 year of paying the appeal brief forwarding fee and see what happens to the number of appeals.”
What would be the outcome should the appeal not be decided within the 1 year period?
“What would be the outcome should the appeal not be decided within the 1 year period?”
That would never happen. The APJ’s would simply churn out an endless stream of per curiam decisions either affirming (e.g. by adopting the examiner’s reasoning as their own) or reversing (e.g. for the reasons stated by appellant).
The PTO is capable of meeting any time limit, whether increased or decreased, that is set. If you cut the hours/BD in half, 50-60% of the examining corps would still be doing 110+% production. They’d just churn out twice as many as they are churning out now. Same thing would happen if you doubled the hours/BD. They would just do half as much.
Examiners are rational beings. If they are currently getting 20 hours/BD, and you told them from now on they’d only be getting 10, they’d adjust. Same thing if you told them they’d be getting 40 hours.
APJ’s are no different.
Have you read many PTAB decisions in ex parte appeals? 90% of what is in the decision is regurgitated examiner rejection and applicant argument. Stop that and just decide the case. In other words, get to the point. That would solve about 90% of the backlog in about a year.
“Could that be because 1) 75% of the cases that are appealed get re-opened by the examiner and/or 2) many applicants resign themselves to “trying to work with the examiner” rather than wait 3+ years for a decision (and 7+ years for a patent to issue)?
Put in a rule/law requiring a decision in ex parte appeals within 1 year of paying the appeal brief forwarding fee and see what happens to the number of appeals. My bet is it would skyrocket.”
Of course. I have no doubt. That is not what is under discussion just now.
6, your statement of “That is not what is under discussion just now.” ignores the very point which created this discussion (your post at 4.1.1.1.1.1.1) being plainly incorrect – and the underlying implicit premise of your post being flat out rejected.
In other words, your reply at 4.1.1.1 is refuted by DanH’s comment at 4.1.1.1.1.1, and my comment at 4.1.1.1 needs a better answer from you.
In short, transperancy here is EXACTLY what is needed becuase we do have a history of bad decision making.
The reflection on Obama’s stated platform and the hypocrisy of doing the opposite in running the patent office smacks of heavy undue influence (cue NWPA). There are simply just too many indicators that leaving the management in a non-transperancy mode is making things worse, not better.
“In other words, your reply at 4.1.1.1 is refuted by DanH’s comment at 4.1.1.1.1.1, and my comment at 4.1.1.1 needs a better answer from you”
Ahhhh, it needs a better answer because it is refuted. In anon’s mind anyway!
Bro DanH went off into the weeds talking about the board backlog. I was talking about internal management decisions. Not substantive management positions on individual apps. Up until that point in time anyway.
I’d like to know what other agencies record their employees’ activities by the hour.
Military contractors – at least they were in the eighties.
That would be interesting to know.
End loading and mortgaging cases has been going on at the PTO ever since the current count system and “compact prosecution” scheme has been in place. There’s nothing new in any of these “allegations” or “revelations” except that now the examiners are gaming the system from home, rather than on their lunch two hour, at the PTO fitness center, or at a movie over on Eisenhower Ave.
Nothing to see here but a few Congress critters getting an opportunity to grandstand.
Truth.
Agreed.
I used to work there and still shocked at what I saw. Utterly floored. Many good employees (at least when all working in the same complex with managers on same floor) but way too many who barely “showed up”.
After one year, very very very difficult to fire a patent examiner. I think nearly impossible.
It needs to be reformed. Period.
Apparently “nearly impossible” examiner firings happen quite frequently. Although the following data is a bit stale, 17 patent examiners were terminated in 2004, 24 were terminated in 2003, and 10 were terminated in 2002. These stats are presented in a report by the National Academy of Public Administrations, which is cited by the POPA president in his testimony (page 79 of the PDF). For comparison, the NAPA report also cites to a CATO institute report which notes that the State Department has fired only six employees for poor performance from 1984 through 2001.