IG Report: Examiner Time and Attendance Abuses

by Dennis Crouch

The Department of Commerce Inspector General has released an important investigative report concluding that a substantial number of patent examiners are involved in “time and attendance abuse” — working unsubstantiated hours.  The unsubstantiated hours peak just [beforeafter production quota.  In a PR response directed both internally and externally, the USPTO emphasized that the report showed only “approximately 2% of the total hours claimed by the patent examiners” were not explained by the computer-records used by the IG and that “there may be many reasons for the lack of a digital footprint” for that amount of time.  The PTO also reports that their new mechanisms for time recording have reduced the opportunity for mistakes.

This new investigative report is a follow-up to prior IG investigations regarding telework abuses. [IG Reports][Patently-O].

With 10,000 examiners, the 2% over-charge rapidly adds-up to $10 millions+ per year.  While most examiners had at least some unsupported time, the vast majority of the potential abuses were concentrated to a much smaller group of examiners.  About half of the unsupported hours were claimed by a limited group of ~5% of examiners.

In the background of all of this is that examiners must meet production goals as well as hours goals that are both standardized.  Examiners that are outside of the norm (either more or less efficient) will face an increased incentive to fudge the system.

An important question that is not addressed directly by either the Inspector General report or the USPTO statement is whether the examiners identified as potential egregious violators will be further investigated and sanctioned where appropriate.  Footnote 2 of the OIG report answers the question from its position:

The OIG has not conducted a criminal investigation (or referred this matter to the U.S. Department of Justice for further investigation) and is not recommending that USPTO pursue administrative action against any of the individual examiners analyzed in this review, due to possible implications of the Computer Matching and Privacy Protection Act of 1988 (CMPPA), Pub. L. No. 100-503, 102 Stat. 2507. In general, the CMPPA imposes certain restrictions on federal agencies’ comparison of multiple datasets to identify misconduct and pursue either criminal or administrative action. Out of an abundance of caution, the OIG designed this analysis to avoid implicating the CMPPA.

I expect that the IG is using this approach as an excuse to attack the PTO without directly attacking any particular examiners. For the IG, the point here is that the PTO needs to improve its systems and structures.

More to come on this.

168 thoughts on “IG Report: Examiner Time and Attendance Abuses

  1. 12

    Lol at complaining about a factory-based time system not fitting a thinking man’s job.

    There’s only one paragraph that you need to read in the entire report, as it perfectly explains the entire issue:

    For example, an examiner who works 80 hours performing patent examinations and is expected to complete a patent application every 20 hours, must complete four reviews to meet the production goal. If an efficient examiner needs only 65 hours to complete the reviews for which 80 hours have been allotted, that examiner can theoretically do nothing for the excess 15 hours and still achieve a “Fully Successful” rating. Alternatively, that employee could complete five applications in 82 hours and claim 100 hours of work, 18 hours more than the employee worked, in order to receive 20 hours in overtime pay and potentially an above-average rating. The large amounts of unsupported regular and overtime hours claimed by above-average and high performers are an indication that abuse, similar to the hypothetical, is taking place within the examiner ranks.

    There’s no doubt that is where almost all of the “unaccounted for” time lies, because examiners that can’t make production will be punished or fired, so we’re talking about people who can super-produce.

    The report views “unsupported hours” as a bug, when it fact it is a feature. The only question is “How do you recognize labor efficiencies by inducing someone who is capable of the fifth review to engage in the fifth review?” If you can’t induce the 5th review out of the examiner, you have to hire another examiner (and spend more on training, benefits, office space, and equipment) to make up for all of the uninduced dead weight. The only manner you can do induce is to provide an incentive system that awards a reasonable amount of additional money for engaging in the 5th review.

    If that system was the production bonus system you would have better timekeeping. But the bonus system is ridiculous – 10% more work for 5% more pay, and then an additional 1% more pay for each 5% more work. In the hypothetical example, if the examiner is finishing his work 20% faster than other examiners, he could take a 7% bonus at the end of the year, or he could claim 1-for-1 overtime and make 20% more money on each paycheck.

    Nobody will do 20% more work for 7% more *delayed* pay, especially not when the employer has consented to setting the value of the labor at 20% more pay immediately. Nor is there any reason to “punish” the fifth review as opposed to the fourth – there is a backlog that needs to be gotten rid of, the stack of applications that need review is effectively (for the time being) infinite. The timekeeping “problems” are just examiners choosing to turn their exams in early rather than pretending that they found the test as hard as other students.

    If you made the bonus system equal to the overtime system and paid out quarterly, it would only be moderately worse than overtime (which pays out immediately) and some examiners might switch. In fact, if you paid out bonuses biweekly, this report would simply not exist. Until then, the best examiners are just going to claim their extra work as overtime and do a poor job documenting overtime hours because nobody will punish them because nobody is interested in disincentivizing their extra work.

    And to the point of some other people here – When your job is to know the state of the art of a field and the field is a field in general use, you’re almost never not working. If I run out to the mall and I notice a new feature on some store’s display monitor, that mall trip became work. The office acknowledges that not all NPL searches are done by computer, nor is all NPL truly L (i.e. in written format), so it would be virtually impossible to prove someone isn’t working, which is why even the extended lengths the report goes to are insufficient. Thinking and knowing things are parts of the job, and to suggest one is not thinking because one is not typing would render most lawyers with secretaries not even part time employees.

    1. 12.1

      “The large amounts of unsupported regular and overtime hours claimed by above-average and high performers are an indication that abuse, similar to the hypothetical, is taking place within the examiner ranks.”

      Yeah and I’m sure it used to happen a lot more than it does today when everyone knows that their time is being scrutinized.

    2. 12.2

      “The report views “unsupported hours” as a bug, when it fact it is a feature. ”

      You’re probably right about that, but they don’t see it that way. Because they think it’s a magical thing that the hours magically line up perfectly (regardless of how many RCE’s miraculously come in during a single bi-week).

    3. 12.3

      “Until then, the best examiners are just going to claim their extra work as overtime and do a poor job documenting overtime hours because nobody will punish them because nobody is interested in disincentivizing their extra work.”

      Well, you mean fastest. But yes, the incentivization thing is what is driving all of the hours that you’re talking about. I doubt they’re all of the hours talked about, but probably most of them.

      1. 12.4.1

        Anytime you hear anyone talk about fraud that doesn’t have a gigantic amount of super good evidence proving every element in their hands you already know they’re a ta rd anon. If you don’t know this by now and you’re still intereested in pretending to be a lawlt ard then you may as well incorporate it into your knowledge set right now so that you can pass better.

        Spoiler alert, you don’t have such evidence and you’re a ta rd.

        1. 12.4.1.2

          Except 6 – I am not the prosecutor here, and don’t need all that evidence to put plainly what is going on – no matter how much you might not like the facts.

          Stealing time and saying it took you time when it did not is plainly fraud.

          Try to deal with it.

          1. 12.4.1.2.1

            ” and don’t need all that evidence to put plainly what is going on”

            ^Thinking that is what makes you a ta rd.

            1. 12.4.1.2.1.1

              Except not, 6 – maybe you want to wake up and smell the coffee.

              Not a chance here that your views are correct.
              Absolute zero chance.

              Have a nice day.

    4. 12.5

      Random – you were the one that emphasized that the system is separate for time and for throughput – now (AGAIN) you want to conflate the two.

      What is up with that?

      1. 12.5.1

        I’m not trying to conflate anything. The legal system didn’t just happen upon the billable hours concept while it was out at a bar one night and took it home – the billable hours system is used because it is the best manner of approximating thought-work. The office should be run on a billable hours system if for no other reason than it matches what the public we work with is doing – it’s the standard manner of compensating legal work.

        The PTO heads know this, which is why the count system is essentially a billable hours system. But they lack the statutory authority to pay examiners billable hours, they have to pay them hourly wages. So they simply layer the count system on top of the hourly system and then look the other way when it comes to investigating hourlys.

        It’s not me trying to conflate them, its the PTO management, and they’re right to, because that is the system that ought to be used and they’re not allowed to purely use just that. You simply can’t take a non-menial process like “thinking” and subject it to a hourly criteria. People will just “think” slower.

        As for your comments elsewhere about fraud – there is absolutely zero fraud going on. The time sheet is not asking you how much of your time can be supported by a digital footprint. The time sheet asks how long you were examining. You would expect lawyers who could go out to dinner and bill a client for talking about their case to understand that an examiner need not even be in the building to be examining his docket. I’ve sat at starbucks for two hours and claimed them because I was talking about 101 there. That was entirely proper.

        1. 12.5.1.1

          You are such a wanna be that it is not even funny.

          You are off on every one of your “premises” here.

          Every one.

          You are conflating what you think that you want with what you have.

          What statutory authority is there that you think that you need to restructure to a billable hour structure (even as the legal industry more and more struggles with that structure)….?

          And you think that you can bill for sitting at a Starbucks and “talking about” 101 for two hours…? Where is “talking about” 101 in your job description? What part of examining AN application doe such gen eral “talking about” fall under?

          You are definitely part of the problem Random. Stop stealing innovator funds.

  2. 11

    There are some interesting misleading points about the report. First, most of the posts here seem to be assuming 80 hours. However, the time codes that were listed omits many time codes that examiners would typically claim including leave, training, interviews, etc. The selected time codes were selected because they were identified as requiring computer activity.

    Some areas of the USPTO have around a 70% examination percentage, meaning that in any biweek, an examiner may have only spent 56 hours examining, with remaining time being used for training, art unit meetings, leave, interviews, etc. Over a week, this would actually amount to a little more than 67 minutes, or around 13 minutes a day average. Of course, the “misreported hours” are focused on a smaller number of examiners, but the point is we are dealing with a smaller percentage of hours in the report. Further, since leave and training were taken out, where it is difficult to under report these times, the hours removed from evaluation would not actually add as many unsubstantiated hours.

    With the vast majority of the time of the report actually being the examination time, it is also interesting to note that examination does not actually require computer use for all of the time. Many examiners will actually print out claims, specifications, and references to read and markup, where these activities, based on the methodology presented in the report, would conceivably add to the unsubstantiated time, where a large percentage of examination would involve actually reading these documents to understand the invention and the references to be applied.

    I would guess that an examiner that is doing a thorough job probably spends less than half of the examination time doing the actual search and typing the rejection, with the remaining time being spent actually reviewing the specification, claims, and references to be applied. This would actually explain part of the correlation between highly evaluated examiners and discrepancies in time. As an example, if an examiner were to print a case for the next day at 4pm, with the workday ending at 5pm, and he/she does not use the computer prior to leaving so that his/her computer locks he/she actually leaving, the hour would be presented in this report as being violation. Using the average 70% examination time, the examiner would claim around 5.5 hours of examination time in the day, where the method of the report would confirm only 4.5 hours of examination, giving that examiner around 18% of unexplained hours. Note that in the above example, nothing would violate any policies, as the examiner would have 24 hours to respond to any e-mail or voice message, thus providing no actual requirement that the computer be accessed prior to leaving.

    I am not saying that there are no abuses. However, reports like this make me think that the OIG is more guilty of government waste than the USPTO, where time was wasted both performing flawed studies without understanding the workings of the agency being investigated and providing such an attractive looking 48 page report to present the flawed research.

    1. 11.1

      That is the most thoughtful “defense” I have seen in the “examiners running amuck” trying to defend what on the surface is simply not defensible.

      Thanks for the substantive points.

      1. 11.1.1

        And what about voluntary worked hours? Did the OIG factor these hours in? Me thinks not. So, if an Examiner struggling to make production works voluntary time (ON THE COMPUTER, i.e., electronic footprint) on a Saturday or past their regular working hours during a weekday, these hours were not counted toward the positive-side of the ledger? Huh? These voluntary hours could far, far exceed the alleged “unsubstantiated” hours, when totaled. Moreover, printing out patent applications for perusing is done by a substantial amount of the examining corps, from my understanding (i.e. less eye-strain, easy to mark-up and reference cited pages, etc.), and such hard-copies are readily available should the systems go on the blink. BUT…No computer-time, according to the OIG equates with waste, fraud and abuse it would seem. But hey, the OIG has a job to do, and it would certainly not be in their best interest to report…”after extensive analysis, and vast sums of investigatory money spent, we can report that there is substantially nothing to report. Thank you very much. Good day, sir.” To which Congress might reply “Really? We charge you with manufacturing, er, uncovering waste, fraud and abuse, and you aren’t giving us the preordained result?!.. This lack of investigative ‘effort’ will thus result in a lack of funds applied to the OIG 2018 budget…” Yup.

        1. 11.1.1.1

          “These voluntary hours could far, far exceed the alleged “unsubstantiated” hours, when totaled.”

          They obviously do, at least in total over the whole corps. Though maybe not for each individual.

      2. 11.1.2

        And what about voluntary worked hours? Did the OIG factor these hours in? Me thinks not. So, if an Examiner struggling to make production works voluntary time (ON THE COMPUTER, i.e., electronic footprint) on a Saturday or past their regular working hours during a weekday, these hours were not counted toward the positive-side of the ledger? Huh? These voluntary hours could far, far exceed the alleged “unsubstantiated” hours, when totaled. Moreover, printing out patent applications for perusing is done by a substantial amount of the examining corps, from my understanding (i.e. less eye-strain, easy to mark-up and reference cited pages, etc.), and such hard-copies are readily available should the systems go on the blink. BUT…No computer-time, according to the OIG equates with waste, fraud and abuse it would seem. But hey, the OIG has a job to do, and it would certainly not be in their best interest to report…”after extensive analysis, and vast sums of investigatory money spent, we can report that there is substantially nothing to report. Thank you very much. Good day, sir.” To which Congress might reply “Really? We charge you with manufacturing, er, uncovering waste, fraud and abuse, and you aren’t giving us the preordained result?!.. This lack of investigative ‘effort’ will thus result in a lack of funds applied to the OIG 2018 budget…” Yup.

        1. 11.1.2.2

          ..and two wrongs certainly do not make a right, as the perpetrators on the low side of the curve are not the same perpetrators on the high side of the curve, and this attempt at “evening out” is even worse than averaging the scam over all of the examiners.

          Fraud is still fraud, my friend.

    2. 11.2

      “As an example, if an examiner were to print a case for the next day at 4pm, with the workday ending at 5pm, and he/she does not use the computer prior to leaving so that his/her computer locks he/she actually leaving, the hour would be presented in this report as being violation. ”

      That actually does probably happen in a non-negligible amount of the cases. I myself barely print things out but occasionally my machine locks while I’m reading long cases. Though I print them out more lately though I used to. Still, old people I’m sure print just about everything.

    3. 11.3

      “As an example, if an examiner were to print a case for the next day at 4pm, with the workday ending at 5pm, and he/she does not use the computer prior to leaving so that his/her computer locks he/she actually leaving, the hour would be presented in this report as being violation. ”

      That’s only if the examiner is a full-time teleworker, and only if the examiner doesn’t briefly log in to log out of the VPN at the end of their work day, as they are instructed to do.

      1. 11.3.1

        as they are instructed to do

        The small number of the most heavy abusers are also characterized as “high achievers.”

        One would think that any such “high achievers” know how to follow instructions….

        1. 11.3.1.1

          Yes, well, we do KNOW HOW to follow instructions.

          But we have no patience for BS or the tedium of following rules.

          That’s life in the fast lane, baby!

          1. 11.3.1.1.1

            Not following rules also leads to abuses such as Fraud.

            And there are consequences to traveling in that fast lane, “baby.”

            Do the crime, do the time.

              1. 11.3.1.1.1.1.1

                There is nothing grey about misrepresenting facts to the government, and materially benefiting from that material misrepresentation.

                You want to see gray where none exists.

      2. 11.3.2

        Oh, I didn’t realize examiners were supposed to log out at the end of the day. Lock their computer, yes, but I have been told to stay logged on because they do updates etc. overnight and need access to the computer.

        1. 11.3.2.1

          This is actually the real instruction from what I understand, to lock the computer…which happens when your computer is idle. Also, the argued example applies to all examiners, as a non-hoteller does not badge out, so no further data points would be found for the report.

          1. 11.3.2.1.1

            You’re definitely supposed to log out of the VPN when you aren’t using it. Check the training materials. (It should be obvious that this does not apply to laptops in the office)

            1. 11.3.2.1.1.1

              Looking at the current materials, the only requirements with regard to the VPN, especially in view of the dedicated VPN routers that were provided, is to be logged in during work hours, with no mention of logging out when you are done. If you could provide the specific location of the directive to log completely out, I would take another look.

  3. 9

    This is a USPTO accounting problem not a real problem. The USPTO either pays too much for overtime, or too little for exceeding production.

    If over 2 weeks you need 40 points that means in “hours” each point is worth .5 hours. If you have 41 points over a 2 week period and your “bonus” for an extra point is less than the payscale for 2 hours, then you will “work” 2 more hours.

    1. 9.1

      Obviously. People have been going on about this forever. Implement stu pid system to stop spe arbitrariness at the behest of POPA, then coopt it, and you will eventually suffer the “consequences”.

      1. 9.2.1

        I think 6’s point is, if you implement a system that is arbitrary and silly, you are bound to get arbitrary and silly results.

        If they Office wants to make judgements on throughput numbers, then pay based on number of pages read and claims searched.

        One point for an “office action”, when one perfect office action can be 5 pages and require reading two seven page documents and another perfect Office Action requires 37 pages and reading six 40 page documents is silly and one should expect compensating behavior.

        1. 9.2.1.1

          Les,

          You give too much credit to 6.

          Keep in mind that changing the Officr metrics is NOT a new topic to these boards.

          1. 9.2.1.1.1

            I don’t know what 6 really says, but from what I understand Office actions are worth points, and you can’t put half an office action in one pay period, and half in another, or something like that.

            Thus, to me it makes sense that examiner’s will save up office actions that are completed and submit them as needed to make quota. Then when there is a breakpoint (apparently at the end of quarters) where there is going to be enough time for the “randomness” of hard vs. easy office actions to average out in the next period (I guess the next quarter) you can dump all that extra work you did and get paid for it.

            It just seems to me that the issue is if these examiners are doing bad work or not.

            1. 9.2.1.1.1.1

              Now you are giving far too much credit to the gen eral examiner…

              And of course, there is the separate – but intertwined aspect of the quality of their examination to deal with (and yes, that is quite a different topic than any standard of review).

              But what we have here is purportedly stealing (fraud) of the time aspect only, quite apart from the “quality” (or lack thereof) of any work product.

              Fraud on the government is a serious offense (no matter how many examiners attempt lame excuses).

          2. 9.2.1.1.2

            Actually, reading the comments in more detail below it seems like a small % of examiners are utilizing this tactic to gain about 10% of unsubstantiated hours. This is an absurdly low % of hours to be unsubstantiated in an office environment. This leads me to believe that other examiners are working unreported hours to game their production/hour statistics in the other direction as well.

              1. 9.2.1.1.2.1.1

                Yes that makes a great deal of sense. If there are Examiners that make overproduction, many will have to work extra to make production, that is just a normal distribution at work.

                1. But it is NOT a “normal distribution at work”: precisely because of misreporting is skewing ANY sense of normal distribution.

                  I think instead that you mean to say that there SHOULD BE a normal distribution at work, but that normal distribution is being manipulated at both ends to BOTH avoid the pains of the low end, and to excessively reap the benefits of the high end.

                  In other words, there is yet another indicator of illicit gamesmanship going on.

                2. Let’s do a thought experiment.

                  Take a normal distribution graph and picture it in your mind.

                  Take a “whatever” plus and minus sigma (arbitrary at this point, and more for visual effect), and picture in your mind how this “snips” the tails of the curve at both ends.

                  The low end will not be seen in the reported hours because those at that end will under report in order to avoid the “pain” of falling below the cutoff. This gives a false impression of examiner capability and a false sense of “what it takes to do a proper job” of examination.

                  The high end will not be seen (at its true level, but rather will be artificially inflated) by the misreporting in order to obtain overtime pay – both by those who SHOULD fall into the middle and by those in the tail reaching for even more of that tail. This is simply outright fraud.

                  Now take a step back and realize that this “theft” has another related effect based on the standard project management triangle of schedule (time), scope (features, content) and resources (cost, budget,pay) that bears on quality. Given that you are falsely manipulating legs of the triangle with falsity with the schedule and resource legs, are we NOT surprised that quality (no matter how measured) is adversely affected?

                3. Yes, I meant examiner ability to output actions is a normal distribution.

                  This does seem (to me) to be a major issue to investigate if you are representing examiners, because the “abusers” in the report, are basically the only reason performance metrics dont skyrocket out of reach of the “average” examiner, because there is no such thing (as far as the USPTO knows) as a subpar examiner, because those people just work unpaid overtime to keep their job.

                4. Just keep clear that each end of the tail – and the actions that affect each end of the tail are perpetrated by different individuals, and that the “wrongs” of the one set do not – and cannot – erase the wrongs of the other set.

                  Lot’s of people are still trying to conflate those different “wrongs.”

  4. 8

    Out of “10,000 Examiners”, how many are told each year to pack it up cuz they aren’t “performing”? I assume the PTO engages in the usual management practice of putting people on “probation” or whatever with one of those stern letters signalling that the end is probably near absent a miraculous turnaround. How many such letters go out annually? How many employees pack it up within six months of that letter?

    I would assume that information would be findable.

    I guess what’s most impressive about the PTO, given the size of the workforce, is the lack of headline-making scandals. Not the silly “star chamber” stuff that gets the Most Important People Ever all frothed up, but real scandals. You know: theft of IP, inside dealing, that kind of thing (not to mention serial harassment of subordinates and the like). Has there been any such newsworthy incident in the past 10 years? 25 years? How far back do we have to go?

    1. 8.1

      Hi MM – I believe there was a scandal involving the blackberry / RIM case in which the PTO was accused of impermissible ex parte communications with a non-applicant (RIM or RIM agents). If my vague memory serves me here, the alleged act was uncovered via FOIA requests by the applicant.

    2. 8.2

      “I would assume that information would be findable.”

      You could do a FOIA request. But the number isn’t that large most years and they usually report the “attrition” rates in the annual yearly publication. Further, as the absurdity of the production reqs continues to grow ever larger I hear that people that aren’t that far under 95% or whatever are usually more or less let slide. But that’s just realism even though formally they could choose to fire that person, the USPTO would be the ultimate loser because they then have to train a replacement at substantial cost. Unless the person is underperforming for a long time or there is mitigating circumstances the the PTO is the loser if it fires people for lack of performance.

      1. 8.2.1

        6: I hear that people that aren’t that far under 95% or whatever are usually more or less let slide. But that’s just realism even though formally they could choose to fire that person, the USPTO would be the ultimate loser because they then have to train a replacement at substantial cost.

        Right, that’s the universal calculus. But certainly some people do get the axe or at least they get a warning that the axe is coming down and, presumably, they bail out before that happens (leaving being preferable to “fired”). Or at least I assume they do, at some measurable level.

    3. 8.3

      “(not to mention serial harassment of subordinates and the like)”

      That doesn’t come up because most people are entirely ignorant of what that actually means. Incredibly enough.

    4. 8.4

      Leave it to Malcolm to be an arse and conflate other real problems with this real problem.

      (the stench of his “poker tell” is nauseating)

  5. 7

    “The unsubstantiated hours peak just before quarterly quota.”

    Dennis, your summary of the report appears to be incorrect.

    The report says “After each examiner production deadline, the OIG observed an increase in the percentage of unsupported hours.” The report also specifically states that the peak months are January, April, July, and October while deadline months are March, June, September, and December. (Page 18)

    That said, the supposed peaks look exceptionally limited (other than the october outlier) in figure 5. I think this would be better described as a August through January phenomenon.

  6. 6

    “And the number of patents that examiners are required to review is unusually low, the inspector general found. The agency’s production goals were last set in 1976, before the Internet made it possible to determine the state of the art in a particular field in a short time.”

    LOL WUT? Who wrote this report?

    “Many examiners complete their work faster than they are expected to”

    More like “some few” with generous easygoing signatories. Which coincidentally is part of a larger problem, lack of consistency across the corps.

    “But instead of demanding more from examiners, patent officials recently gave them two-and-a half hours more on average to review each application, the inspector general noted, recommending changes to production goals the report called “out of date.””

    Lulz lulz lulz lulz. They’re asking for thousands of additional references be reviewed, and more sources. And that’s just the beginning. Set aside the longer and absurdly more complex and lawlyerly written specs/claims.

    link to washingtonpost.com

    1. 6.1

      When your “review” and “consideration” merely includes the item appearing in your automated search, you really should not go “begging” for more time for that.

      1. 6.1.1

        You’re saying I should just skimp on the “review” and “consideration” then? Just kind of blow that off? Because it happens to be included in an “automated search” (whatever that is supposed to be?)?

          1. 6.1.1.1.1

            So then because a random ashat “anon” on the interbuts assertates that “I” conduct “review and consideration” which “merely” includes “the item” “appearing” in my “automated search” I supposedly am obliged to not go “begging” for more time for that?

            Wtf are you talking about willis?

      2. 6.1.2

        What automated search? The only automated search I know of is the “plus search” and almost no one uses it because the results are worthless. The fact is that whoever wrote the section of the report about having too much time because now we have the internet clearly doesn’t understand the examiner’s job. The internet only exposes an infinite number of potential new references to search and consider, it doesn’t actually make the job any easier than it was in the 70s when the count system was created (in fact back then you didn’t lose counts for RCEs and because it was 17 years from issue you could write just a 112 or 101 for a 1st action).

        With that said, the initial part of the report discussing 420ish examiners that have 10% hours unaccounted for is probably accurate. Anyone in private industry would consider 420 problem employees out of 8100 employees, or just 3% of all examiners, to be a pretty good.

        A much bigger problem at the office is the difficulty of firing examiners for turning in poor quality work after they’ve passed their probationary period. The office still emphasizes quantity over quality, mainly because they can quantify it and put it into spreadsheets and pretty graphs.

        1. 6.1.2.1

          I’m guessing he’s talking about EAST search as examiner automated search tool. I honestly can’t figure out what manner of crack anon is smoking today though.

          1. 6.1.2.1.2

            Speaking of Automated searches –

            We are now receiving, in some instances, “Notification” of Office Actions, rather than receiving them by mail. The Docketing department then dutifully downloads them and processes them as per usual.

            The downloaded “Office Action” often includes a 20 page Office Action followed by 40 pages of useless (to us) search documentation which gets printed right along with the Office Action.

            Would you PLEASE ask the powers that be to include that search summary in a separate document?

                1. Statement? I Made a request of 6, not you. I try to tolerate your arrogance. But this time you crossed a line. Did you really think I was not aware that one can spend time to determine the desired page range and set the printer driver to print only the desired page range?

                  It is unnecessary work that can be avoided if the PTO would stop including documentation in the office action that does not belong in the Office Action.

                2. No arrogance and no line to cross Les.

                  You said something stu p1d on an open forum and you (rightfully) got dinged for it.

                  Man up, just a little.

                3. Dennis –

                  Would you please use that pole taking feature that you use sometimes and pose a question regarding arrogance of the above poster?

                4. Certainly, and especially if you eliminate the whiners that cannot handle my being correct in my observations at the said whiners’ expense (which of course, routinely includes you, Ben)

                  ;-)

                5. LOL – and there is 6 with the baseless med/sick ad hominem…

                  I am correct NOT because I say that I am correct, but rather, I say that I am correct BECAUSE I am correct.

                  Eppur si muove.

                6. …instead of the empty ad hominem, try “attacking” the facts that I present….

                  Any time you feel the urge to simply use the baseless ad hominem, ask yourself why you are attacking the person and not what the person is presenting. When you find that you cannot attack what the person is presenting, then stop and think about THAT for awhile.

                7. “I am correct NOT because I say that I am correct, but rather, I say that I am correct BECAUSE I am correct.”

                  Ala OCPD.

            1. 6.1.2.1.2.2

              “Would you PLEASE ask the powers that be to include that search summary in a separate document?”

              Sorry brah, I don’t even know who the power that is over such a thing is. That’d be like the mail room?

                1. Mmmm, never thought about that. I don’t think they get “posted” to PAIR. I think they get “scanned in” when they get sent out by the mailroom, not sure if it’s the same people or not though and I don’t really know.

      3. 6.1.3

        Automated searches are utter crap. No one uses them. I tried them for a few months, and they were beyond a waste of time.

        For some reason management keeps bringing them up, as though they would make “stakeholders” feel better about the quality of examination.

    2. 6.2

      Do you have any source for the 1976 reference being wrong? I’m just curious. They mentioned this factoid both during interviews and the PTA.

      1. 6.2.2

        6,

        I just realized that the “LOL WUT” was probably due to the “the number of patents that examiners are required to review is unusually low” statement rather than the last goal change being 1976.

        As the report appears to deliberately confuses production and presence, I’d say the report was written by someone with an axe to grind.

        1. 6.2.2.1

          …because everyone knows that the production quality (?!) has just been off-the-charts- Awesome, right Ben? Heck, the Office even says so itself…

          Not that there wouldn’t be any correlation between the two, now would there?

          Critical thinking is just not your forte, is it?

          1. 6.2.2.2.1

            Yup – the same 6 that argued that the Office “quality metrics” are perfectly fine…

            1. 6.2.2.2.1.1

              Oh hardly anon. I didn’t say the “metrics” are perfectly fine, I said the “standard(s)” (standard in the singular really) are most likely perfectly fine. The standards, as in the only standard that exists, the “clear error” standard, is fine for what it is there for and was always intended to be (which spoiler alert, was never as a quality metric). The clear error standard used to exist to “punish” absurdly bad quality, not as a mere metric for any given examiner. It was there to signify that a complete screw up had occurred (ala you missed a blatant 102 in your search). Using the clear error standard as a “quality metric” in general as is now done is a fools errand and foolish to begin with.

              If it were me I wouldn’t be using the clear error standard as the “quality metric” if I really want to measure quality. But, I will freely admit that implementing any other quality metrics that were of any use and meaning would be dam hard to implement and probably not worth the resources spent thereupon unless it was a de minimus sort of thing.

              Further, remember that “measuring quality” and “punishing lack of quality” are two separate things.

              Finally, also remember that doing anything other than gently administering a “quality metric” as in through punishment is likely to be counter productive on the whole, at least in the vast majority of AUs.

              1. 6.2.2.2.1.1.1

                This is the first time that you are talking about the “clear error” standard, 6.

                Put away the pipe (and the AccuseOthersOfThatWhichMalcolmDoes meme) – it does not work for him, and certainly does not work for you.

                1. “This is the first time that you are talking about the “clear error” standard, 6.”

                  Um maybe in this thread. I’ve address it a dozen times in other threads. But anon, spoiler alert, anytime you’re talking about “quality metrics” (which you brought up and constantly bring up) you’re talking about the clear error standard under the agreement with popa (at present before they renegotiate for Michelle’s plan if it ever comes to fruition).

                2. But never in the conversations that we have had about quality metrics, 6.

                  This is completely out of the blue on THIS topic.

                3. “And no – the clear error standard is a completely unrelated item.”

                  Lulz anon doesn’t even know what “quality metrics” are in place at the PTO. And he constantly goes on and on about them. What a re re.

                4. Not a “re re” at all – you are doing that AccuseOthersOfThatWhichMalcolmDoes thing again – try to keep up, son, and not conflate a different thing (standard of review) with our separate discussion of examiners’ quality.

                5. “Not a “re re” at all – you are doing that AccuseOthersOfThatWhichMalcolmDoes thing again – try to keep up, son, and not conflate a different thing (standard of review) with our separate discussion of examiners’ quality.”

                  The “standard of review” is what directly determines under the agreement in place, the “examiner’s quality” officially tar dbreath.

                6. No 6 – they are separate items.

                  You really do need to grasp that fact.

                  It is a lot like the confusion you have as to the Office metrics of your work and what your work actually is (what the bargain that the Office has struck in the Quid Pro Quo and what the fee paid for by the applicant entails the applicant to have: a FULL examination and NOT the “standard widget allotted time that you are being measured by”).

                  These are relatively straight forward differences at play. You would be far better off if you grasped these concepts.

      2. 6.2.3

        Yeah, in 1976 there were like 20 references to look through for each application. Now subclasses often have well over 1,000, and applications are often overclassified into 6 or 7 subclasses.

          1. 6.2.3.2.1

            Paul,
            Your “attempted point” is a non-sequitur, since the level of input INTO the patent system has nothing to do with anything, and the overall grant rate (approximately 70%), has merely returned to its historical average after the Office-induced, Reject-Reject-Reject era dropped that rate into the 40% range for zero explained reasons.

  7. 5

    Meh, much ado about nothing if all they find is less than 2%. Nothing to see here so far as I can see, less than 2% is amazing numbers for gov.

    “working unsubstantiated hours.”

    Working “unsubstasntiated” hours. Um, that’s a bit of a stretch, counts popped out, they’re substantiated. As to whether or not their computer spying matches up 1 to 1 I cannot say.

    I also wonder if they even took into account “breaks” and what have you. We actually do have meetings and things that need discussing (set aside workplace gossiping present at every job) that take us away from our desks.

  8. 4

    To answer one of Dennis’ questions, the names of the most abusing examiners (and all the rest of them) are not allowed to be released – they are anonymized for the report, per procedure. But I bet if their SPEs are attentive, they have an idea.

  9. 3

    2%

    Most agencies, private corporations, etc. would be thrilled with just 2% of time unaccounted for. In an 8 hour day, 2% is just under 10 minutes. That is:
    – a single smoke break.
    – a visit to the restroom.
    – a chat with a coworker.
    – a walk around the building for fresh air.
    – a personal call during work hours.
    – a coffee break.
    etc.

    1. 3.1

      far be it for me to defend the PTO, but when you see the actual numbers they look a lot less dramatic than the headlines

      3% of the Examiners (about 300 out of 8100) were responsible for 40% of the underreporting – as you say, most organizations would be ecstatic for that kind of performance

      1. 3.1.1

        And yet, even pin-pointing the behavior to such a small group will not include ANY follow-up with that same small group…

        Tell me you see the problem with that…

        1. 3.1.1.1

          That’s not necessarily true anon. It just won’t be directly. There likely will be some follow up. Indeed, they’ve already sent an email to the corps saying they will review the report and see about what all needs doing.

            1. 3.1.1.1.1.1

              Tbh I’m not even sure what you think should be done anon. Firing the person just costs the PTO more money (wastes it). So you’re thinking something like a “reprimand” or what? All that would likely do is demoralize the person and make them want to do less work. Yeah, gl with that. Do you have anything that you would like to see suggest being done that isn’t ar se backwards from good management? Maybe a stern talking-to?

                1. Lulz, gl with that. Spending how many thousands of dollars (millions?) to attempt to “punish” the loss of how many individual losses of thousands of dollars? How often do you think you’ll prevail in court? How long until the whole of the PTO “accounting” scheme that is set up is deemed illegal itself (thus causing you, the Director, to have to come up with something new)? How many workers do you think will leave and you have to pay to replace them?

                  Lulz, good ol anon, the worst at managing any organization since he opened his mouth on the topic.

                2. Yeah, that kind of shakeup would result in massive backlog. You thought the 700,000 application backlog we peaked at was bad, wait until the Office is at half-staff, and they are all newbies.

                3. How long until the whole of the PTO “accounting” scheme that is set up is deemed illegal itself

                  Do you want to discuss what you mean by this?

                4. And Ferg only had 1 “offender”.

                  Nevertheless now ferguson now faces a shortage of police.

                  link to abcnews.go.com

                  Here’s a hint because you’re too stup id to understand: nobody likes working in most gov jobs that much anon. You’re underpaid for providing a “public service”. You do the job the best you can and then some as hat comes in and second guesses that, coming down with scrutiny and many people will just say screw it “I’m done”. Especially if, as is often the case, that scrutiny is done incompetently.

                  Which is one reason why it’s hard to turn places like the federal VA dept around. They’re already short handed, they can’t stop people from screwing up draconianly because then they’d be even more short handed and the situation is worsened.

                5. “Do you want to discuss what you mean by this?”

                  Not really. I don’t really want to get into it too far atm. But suffice to say that 1) the PTO is required by law to bargain in good faith with the union 2) the PTO has asserted for the last 30+ years (without evidence) that the “avg” time it takes a 12 is what they base their production req on and 3) we now have evidence produced by the gov that it is not in fact the avg time (even with people stressing trying to “make it fit”) and finally 4) even all the spes I know recognize that there isn’t enough time to really handle the apps as well as they likely should be (but they’re just front line managers).

                  Frankly if the PTO brass were to come down hard, someone would file suit for a breach of 1 or would drag popa in to make them file suit. POPA, if nothing else, will defend its members quite vigorously. Eventually.

                6. Lulz – so your “answer” here is (yet again) to do exactly what I told you to do so long ago and get your Union involved.

                  You sure take a long time to say “anon was right.”

                7. “Lulz – so your “answer” here is (yet again) to do exactly what I told you to do so long ago and get your Union involved.”

                  My “answer” to what re re? Criminal charges?

                  Anon, you’re hitting the crack pipe too hard lately brah, you need to cut back. You’re so bad lately that you are barely even able to put together a legit stream of thought. Maybe get a good night’s rest.

                8. And Ferg only had 1 “offender”.

                  Are you REALLY trying to make the argument that we should put up with police corruption because otherwise it might be difficult to have enough police officers…

                  Unglaublich, mein Herr.

                9. Ferg had nothing to do with “corruption” idi ot. Wilson shot Brown. A shooting isn’t “corruption”.

                  But no, I’m not saying you should “put up” with shootings or corruption. I’m saying that there are a million and one ways to to deal with them, most of those million are better than “hurr criminal chargeslol that we will lose because i is a tar d!”

                10. Criminal charges is overreaching. Remember the case maybe 8 years back? When the PTO lost, and decided to stop requiring badge-out?

                  I would be fine if they were fired or reclassified as part-time, if they really are working less than 30 hours a week. You think the rest of us examiners like to be lumped in with them?

                11. …and pay attention – I am not the one trying to lump you all together – quite in fact, that would be your other examiners trying to p00h-p00h the findings here by spreading the stolen time over the whole body of examiners.

                12. Fraud has 4 elements. Not easy to prove them all brosefus. On the rare occasion the gov tries to bring “timesheet fraud” charges they usually have a vast amount of evidence or else they lose. The justice dept generally won’t bring charges if “they don’t know” if the person was working. They need to have evidence that the person actually wasn’t working.

                  “I am not the one trying to lump you all together”

                  Yes anon, the individual that you talk to knows that anon, but as the Director when you start saying sht like you’re saying then everyone “feels” lumped together and then disaster. It’s like donald trump saying that mexicans SENT BY THE MEXICAN GOV were raepists and murderers (as in they pass their lemons off to the US). But then half the country thinks Donald said that all mexican immigrants are raepists and murderers.

    2. 3.2

      To be fair, the supported time assumptions could not be more conservative. 2% is not the real number.

      1. 3.2.1

        I agree – apply the mistimings to the far smaller number of identified employees and that 2% becomes much more significant for those scofflaws.

    3. 3.4

      And if every examiner showed a 2% time unaccounted for, there would be no issue. As usual, the devil is in the details. Just reading from the table of contents:
      – 296 examiners claimed 10% or more unsupported hours. That’s a free day every two weeks.
      – of the 296 examiners with the most unsupported hours, employees with the best annual performance ratings had the most unsupported hours (and the most unsupported overtime).
      – unsupported hours could be more than twice as high as reported.

      This is not just a case of people not reporting coffee breaks. This is a small number of people taking advantage of gaps in oversight to award themselves a large amount of overtime, amounting to two percent of what is a very large budget. Not counting all the undeserved pay raises and bonuses for their exaggerated performance.

      1. 3.4.1

        “Not counting all the undeserved pay raises and bonuses for their exaggerated performance.”

        The only “exagerated performance” indicated by the report is examiners exaggerating how much they were present, not how much they did. The office has a dual requirement of production and presence. The report identifies presence fraud, not production fraud.

        To be sure, this is wrong. But I think most people would acknowledge a big difference between people who fraudulently say they worked X hours and people who fraudulently say they worked X hours after they did 110% of the work expected from X hours.

        1. 3.4.1.1

          Fraud is fraud.

          You yourself point out that the measure here is not the merits of output, but then want to conflate WITH output.

          The lengths people will go to simply admitting that a wrong is – in fact – a wrong.

      2. 3.4.2

        “– 296 examiners claimed 10% or more unsupported hours. That’s a free day every two weeks.”

        Mmmm, yeah 1/2 a day every week for breaks and what have you sounds about right at any job. Indeed, if the PTO is getting solid work the rest of the time that might be an outstanding percent of time actually spent working.

        “– of the 296 examiners with the most unsupported hours, employees with the best annual performance ratings had the most unsupported hours (and the most unsupported overtime).”

        Obviously. Been saying this for years. Obviously true. The worse of a job you do here the better you are rated so long as the counts flow. That’s the nature of the rating system.

        “Not counting all the undeserved pay raises and bonuses for their exaggerated performance.”

        Ben is correct that you’re not right in saying this part.

        1. 3.4.2.1

          “1/2 a day every week for breaks and what have you sounds about right at any job”

          Then why is it not consistent across the USPTO? Breaks and lunch are accounted for – if you are paid for that time, you report it. If you are not paid for that time, you certainly don’t report it is unsupported hours.

          ““Not counting all the undeserved pay raises and bonuses for their exaggerated performance.””

          “Ben is correct that you’re not right in saying this part.”

          Okay, this might have been a bit of a stretch on my part – my assumption is that someone who cheats for 10% of their time is probably gaming the system on their production as well. Especially given the information that most of the unsupported hours are coming at the end of the quota periods, I would guess that poor quality actions are appearing at the same time from the same people, just to make count.

          I do recognize that there is another possibility – that the most productive examiners are the ones who care least about filling in the time cards and spend more time and effort on actual examination. I would be thrilled to find out that is the case.

          1. 3.4.2.1.1

            “Especially given the information that most of the unsupported hours are coming at the end of the quota periods”

            This looks to be incorrect.

          2. 3.4.2.1.2

            “Then why is it not consistent across the USPTO?”

            Um, it is somewhat, though it isn’t strictly regulated. It just isn’t all that enforced. And what all counts as a break? Researching patent stuff online? Is that a break? Talking about patent sht on a patent blog, is that a break? Look brah, they’re getting a sht ton of hours of work out of people at the job, much better than many workplaces do. You can sit around and be outraged about how much the official timecards/computer spying doesn’t reflect that all that well but the fact is that they do. And that is even if people are taking 30 minute breaks on the regular instead of 15 or whatever. Is taking a walk around the interior walkway like a lot of people do for 30 minutes or even an hour the worst evar? What if you’re doing it so that you do not murder someone in the bureaucracy in order to save the office money (or some other mental health reason)? How about then? These is complicated management questions.

            “Breaks and lunch are accounted for – if you are paid for that time, you report it.”

            You say that but the report doesn’t seem to account for them. Else all they’re finding is that people are taking too many or too long of breaks. Breaks are wholly unmanaged at the PTO except by the individual. Further, it is likely a better move to not regulate breaks that much at this job, some of this sht is totally stress your dumbas out stressful and taking a break rather than just sitting through it is often by far the best course to proceed forward. That is a fact.

            “If you are not paid for that time, you certainly don’t report it is unsupported hours.”

            ^I’m not even sure what you’re talking about here. Nobody “reports” “unsupported” hours.

            “my assumption is that someone who cheats for 10% of their time is probably gaming the system on their production as well.”

            Well you’re probably right about that, but “gaming” (aka working well within) the production system is what everyone should be aspiring to, supposedly, according to the party line.

            “I would guess that poor quality actions are appearing at the same time from the same people, just to make count.”

            Might be true, but the actual quality standards to which examiners are formally held are quite low, by design and somewhat out of necessity. Though they are informally held to higher standards.

            “I do recognize that there is another possibility – that the most productive examiners are the ones who care least about filling in the time cards and spend more time and effort on actual examination. I would be thrilled to find out that is the case.”

            Lulz. That would be more like the “most quality focused” examiners, not the most productive. The ez way to make yourself look more productive is to mess around with the filling out of time cards.

            1. 3.4.2.1.2.1

              Well you’re probably right about that, but “gaming” (aka working well within) the production system is what everyone should be aspiring to, supposedly, according to the party line.

              And you want to cast stones at what you think my management knowledge is…?

              You funny (not in a good way).

        2. 3.4.2.2


          Obviously. Been saying this for years. Obviously true. The worse of a job you do here the better you are rated so long as the counts flow. That’s the nature of the rating system.

          And I have been replying for years to your acceptance of this that said acceptance is CRP and that a different system is necessary.

          But hey, just go ahead and fling meaningless ad hominem towards my management knowledge…

  10. 2

    Tempest in a teapot. But let’s all watch the sturm und drang play out here over a couple hundred posts.

    Yawn.

  11. 1

    I am guessing that most of the offending examiners came from the 3600 art unit. How long does it take to write a flimsy 101 rejection?

    1. 1.1

      I’ve heard some of them get 40+ hours for a first action, compared to 8-15 hours for more typical art units.

      1. 1.1.1

        I have had three examiners confess that their art units have not found any patentable claims during the last 12 months. At this point the PTO should refund fees for any patent that gets assigned one of those art units.

        1. 1.1.1.1

          I think such a refund would be an admission that there had been patentable claims filed, assigned to those GAUs.

      2. 1.1.2

        There are no 3600 examiners getting 40 or more hours for a first action. The average examiner in 3600 gets 19 hours for a first action.

        1. 1.1.2.1

          So after they find their knock out, killer 102(b) prior art (humor me, I’m old school) with their 5 second Google search, what do they spend the other 18 hours, 59 minutes, and 55 seconds on?

          1. 1.1.2.1.1

            Perhaps they have an illegal side business of selling strawmen to present company?

            Whatever extra time I have left after a non-final is balanced by the insufficient time provided for going final on a massive set of amendments.

            1. 1.1.2.1.1.1

              I’m impressed you are actually aware of the illegality of such a side business. There may be hope for you yet.

            2. 1.1.2.1.1.2

              “Perhaps they have an illegal side business of selling strawmen to present company?”

              LoL this and the other recent drollity.*

              *Hey, it’s the intertubes. I can make up words iffn I want.

        2. 1.1.2.2

          Correction: I didn’t think out the 19 hour thing fully. The average 3600 examiner is a 13, but many are preaumably at a partial signature authority. The actual number is somewhere between 19 and 17.

      3. 1.1.3

        Bad claim writing leads to bad claims. Applicant(s) are supposed to write the claims. Niw just what is it that you expect for an assessment of a badly written claim?.

    2. 1.2

      Do you have a ballpark estimate for what percentage of 3600 actions you see with only a 101 rejection? Just curious.

      1. 1.2.1

        I have dealt with three just in the last few months. Thankfully I deal with mechanical art units most of the time.

            1. 1.2.1.1.1.1

              But there are portions of the 3600 art unit where zero apps have been allowed in 12+ months.

            2. 1.2.1.1.1.2

              If you really are getting 100% 101-only actions from 3600, I feel for you.

              A 101-Only rejection should happen only at the end of prosecution. Preferably paired with a friendly examiner initiated call offering an interview with a SPE sit-in.

    3. 1.3

      Keep in mind that the scope of this investigation doesn’t really cover an examiner working inefficiently, or even an examiner that logs in remotely, issues a blanket 101 first action and does something else the rest of the day. From what I can gather, the investigation uncovered people who said they were working, when they didn’t even have the common decency to log on remotely and pretend to be working.

      1. 1.3.1

        Yup. This is just those who are exceptionally lazy not to cover their tracks.

        No telling how rampant the true situation is with anyone knowing the easy “cheats.”

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