GAO Testimony Supports POPA's Position on Examiner Attrition

    By Donald Zuhn --

Earlier this month, we reported on the appearance of Robert Budens, the President of the Patent Office Professional Association (POPA) at an oversight hearing on the USPTO held by the House Subcommittee on Courts, the Internet, and Intellectual Property in late February.  We also reported on appearances by Jon Dudas, the Undersecretary of Commerce for Intellectual Property and Director of U.S. Patent and Trademark Office, and Alan Kasper, the First Vice President of the American Intellectual Property Law Association (AIPLA) (our report on Mr. Dudas' testimony can be found here and our report on Mr. Kasper's testimony can be found here).  The second witness appearing before the Subcommittee was Robin Nazzaro, the Director of National Resources and Environment for the U.S. General Accountability Office (GAO).  Today, we conclude our coverage of the PTO oversight hearing by discussing Ms. Nazzaro's statement.

Ms. Nazzaro's testimony focused on the findings of the GAO's 2007 report entitled "U.S. Patent and Trademark Office: Hiring Efforts Are Not Sufficient to Reduce the Patent Application Backlog," which was based in part on a survey of 1,420 patent examiners.  Not surprisingly, the GAO report provides ample support for POPA's position that the USPTO's antiquated production goals are the reason for the Patent Office's high examiner attrition rate (the GAO reports that from 2002 to 2006, one patent examiner left the USPTO for nearly every two the Office hired).  Among the specific findings of the GAO survey were:

• 67% of the examiners surveyed said that the Patent Office's production goals were among the primary reasons they would consider leaving the USPTO.
• 62% of the examiners surveyed are very dissatisfied or generally dissatisfied with the time the USPTO allots to achieve their production goals.
• 50% of the examiners surveyed are very dissatisfied or generally dissatisfied with how the agency calculates production goals.
• 59% of the examiners surveyed believed that the production system should be reevaluated.
• 70% of the examiners surveyed reported working unpaid overtime during the past year in order to meet their production goals (some putting in more than 15 hours of unpaid overtime per week).
• 59% of the examiners surveyed identified the amount of unpaid overtime that they have to put in to meet their production goals as a primary reason they would choose to leave the USPTO.
• 37% of the examiners surveyed identified the amount of time they must work during paid leave in order to meet their goals as a primary reason they would choose to leave the USPTO.

With respect to the USPTO production system, Ms. Nazzaro explained that examiners receive a "count" for each first Office action and each disposal (e.g., allowance), and that production goals are assigned on the basis of the number of production units (a production unit being equal to two counts) that an examiner is expected to achieve in a two-week period.  Ms. Nazzaro also noted that production goals vary depending upon an examiner’s experience and the technology center in which the examiner works.  As Mr. Budens noted during his testimony, the production goals currently being applied by the USPTO were developed more than 30 years ago.

Touching on the USPTO application backlog, Ms. Nazarro explained that at the end of each fiscal year, patent applications that have not been reviewed for at least a first action are counted towards the backlog.  She also stated that even if the Office were to satisfy its hiring estimate of 1,200 examiners in each of the next five years, the backlog would grow from about 730,000 applications in 2006 to 1.3 million applications in 2011.  In fact, Ms. Nazarro noted that even if the Office hired 2,000 examiners in each of the next five years, the backlog would still rise to over 950,000 applications by 2011.  According to Ms. Nazarro, "the agency has acknowledged that it cannot hire its way out of the backlog and is now focused on slowing the growth of the backlog instead of reducing it."  (This, of course, explains a number of the new rules packages that the Office has introduced in the past nine months.)

One of Ms. Nazarro's most interesting observations was the statement the GAO received from the Deputy Commissioner for Patent Operations (Margaret Focarino; at right) when she was asked about the need for examiners to use unpaid overtime in order to meet their production goals.  The Deputy Commissioner told the GAO:  "As with many professionals who occasionally remain at work longer to make up for time during the day spent chatting or because they were less productive than intended, examiners may stay at the office (or remote location) longer than their scheduled tour of duty to work."  The GAO, however, does not agree with the Deputy Commissioner's view on this issue, recommending instead that "the agency comprehensively evaluate the assumptions it uses to establish patent examiner production goals and revise those assumptions as appropriate."

Comments

[Bob Lelkes]

The whining about production goals seems no different today than it was 22 years ago when I was a U.S. patent examiner. Turnover was high at that time as well, especially among new examiners.

I suspect that the reason for the turnover is probably the same as it was then -- the private sector generally paid more than the U.S. PTO. for a given set of qualifications, especially when the examiner became a law school graduate.

How can we address the backlog?

Here are some ideas:

> Abandon the concept of a unitary pendency goal for all patent applications and permit applicants to choose whether they want accelerated examination for its patent applications on a case-by-case basis as in Europe (focusing resources where they are needed);

> Harmonize U.S. patent law with European patent law to allow U.S. patent examiners to rely more fully on non-U.S. search results;

> Adopt the first-to-file system to eliminate the need to consider different sets of inventors under 102(e) and priority of invention under 102(g) (maintain the possibility to prove theft of invention through the courts);

> Discourage (penalize) arbitrary, capricious and vague Office Actions in accordance with the Administrative Procedure Act to increase the productivity of communication between the examiners and applicants and allow more flexibility in the number of iterations per pending application to resolve the issues;

> Limit scrutiny for compliance with the duty of disclosure to criminal fraud and assign responsibility for determining compliance solely to the judicial branch to eliminate the burden of creating and reviewing voluminous prophylactic submissions to the U.S. PTO; and

> Create a post-grant opposition system modelled on the EPO system as a substitute for the reexamination system in which validity is addressed de novo after grant (focusing resources on patents having commercial value and reducing the need to impose a stringent duty of disclosure standard during examination due to an inherent third party "quality control").

Comments?

[jwint]

Indeed, the patent laws should be harmonized-the international community should adopt the US system that is demonstrably superior, for all its flaws, in promoting technological advance.

The purpose of the USPTO is to promote progress, partly by issuing high-quality, valid patents, but mainly by offering a system that provides incentives. Patent quality has improved of late, and the system still provides incentives. All that is not to be made subservient to the goals of a beauracracy to reduce its backlog. Such would the worst of many viable options.

[jane]

"The whining about production goals seems no different today than it was 22 years ago when I was a U.S. patent examiner. Turnover was high at that time as well, especially among new examiners."

Every abuser and despot seeks to justify behavior which results in their own enrichment. I suggest you watch an episode of the Sopranos buddy. Working for nothing is a common virtue that every overpaid CEO and their government counterparts expose.

The real question is why the USPTO staffs its higher management with political appointees, devoid of patent skills.

Look to the top to see why the agency fails.