Exclusive Interview: Commissioner for Patents, Margaret Focarino
|Written by Gene Quinn
Patent Attorney & Founder of IPWatchdog
Zies, Widerman & Malek
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Posted: Feb 15, 2012 @ 1:51 pm
When I interviewed USPTO Director David Kappos in December I asked him about Focarino and the first words out of his mouth were: “What a wonderful leader.” Kappos went on to tell me:
Peggy’s the perfect next Commissioner for Patents. She’s got deep knowledge of the agency, extremely well respected in the IP community, rose up through the ranks, knows everything about patents and patent law and patent examination and works extraordinarily well with employees. She’s loved and she’s revered by the employees, not just respected. And if that weren’t enough, works terrifically well with the union. So Peggy’s the perfect package. She’s got tremendous judgment. She knows how to deal with people, she knows how to deal with issues, she’s very diplomatic and just a wonderful leader. I’ve been doing leadership for a long time. I’ve worked with and studied under some of the best leaders in the world and I know a good leader when I see one and Peggy is certainly one.
While that may seem to be unbelievable, lofty praise, it is consistent with what I have heard many times over the years. Indeed, I have only heard positive things about Focarino, and everyone expresses that she is not only a very nice person but a knowledgeable and respected leader within the Office. She is also someone that I personally respect and like.
To view all of my recent interviews with senior management at the USPTO please visit USPTO 2.0.
Without further ado, here is part 1 of my interview with the new Commissioner for Patents, Peggy Focarino.
QUINN: Thank you very much for taking the time to chat with me, Commissioner, I appreciate it. It has been a while since we have had a chance to chat on the record.
QUINN: I would like to start the interview, if I can, going back to way back in the day. And I did this when I interviewed Nick Godici, who like you, went from newest examiner all the way up to the tenth floor. So I thought it might be good to get a perspective of how did you start, how did you get into this career, how did you join the agency and what you have done throughout your time here that led you to get up here onto the tenth floor.
FOCARINO: Okay. It is interesting that you ask the question, how did I start, because I really did not know much about intellectual property or the position of a patent examiner or anything like that. But I had come to the Washington D. C. area during the summers while in college and worked for the Parks Service. I really liked the area and I became interested in a career in public service. I thought I wanted to work for a federal agency and become part of the public sector as a civil servant. I think the civil service commission had just been abolished back then in the 70s. And so I applied to a few different agencies, but this one in particular just really interested me because of the unique combination of being able to use your scientific background and also learn a lot of law pertaining to intellectual property. So that is really what intrigued me about it. And I came here and applied and they were not hiring at the time so I was pretty persistent. I would get in touch with the personnel office probably once a month and after a few months of trying that, I got hired. I think there were a group of ten new examiners hired that year that was all.
QUINN: Ten? Wow.
FOCARINO: Ten. There were two women in the group, so that seemed pretty normal to me. And then I went to be an examiner in a mechanical area where my area focused on heat exchange, heating and cooling systems and automatic controls for those, and combustion. There were no women in that area. And when I asked where all the women were, because I did not see any, I saw a hundred other examiners that were all men I was told, that they were all in the chemical area. So that was an interesting start. I got a lot of comments from people here and it was not a very diverse workforce as you can imagine in 1977. And they had not been hiring a lot, so the workforce was a little bit older, mostly men. And so they viewed me as an oddity. And so I would be in the search room and people would come by because they heard that there was a woman examiner in the area. And I am trying to do my work and I am trying to search—
QUINN: Like a caged monkey?
FOCARINO: Well that’s one way to describe it but it wasn’t viewed negatively by me. And you had to go to the search room to search, so I definitely had to really focus on doing the search because there was a lot of interest in this female patent examiner that was new. And I had heard one story about they had a woman examiner, years before that, but she was really odd and crazy, and covered her office window with aluminum foil and things like that. So that was their only experience with a woman, so they came to see if I was more normal or not.
QUINN: Oh, no. Wow! Well, that is a patent attorney’s worst nightmare is having a client that is into the aluminum foil wallpaper.
FOCARINO: Right, right.
QUINN: That needs to be on our intake questionnaire, I think.
FOCARINO: Right. I really liked the job, I liked being an examiner and I thought it was really fascinating. But it struck me early on that I probably wanted to get into management. I liked my SPE at the time. He was very good with the art unit in motivating us to do a good job. I liked that environment to be able to run a unit of examiners and really motivate them to do their best. So I became interested in that and then I became a supervisory patent examiner and enjoyed doing that. Then I became a group director, and I liked that. And frankly, pretty early on I thought that management was very challenging but was something that I would really like to try to do. I wanted to motivate people and be a positive influence on people but I did not have a goal of moving up through the ranks at all. I just never really envisioned that. It just happened.
QUINN: Hard work.
FOCARINO: And before you know it
QUINN: Now, before you came here, what was your specialty? Where did you get your degree and what is your degree in?
FOCARINO: I got my degree in physics from the State University of New York. And I had a high school physics teacher that I absolutely loved, and he was a young teacher, the students could really connect with him. I really liked math and science, through my whole time in school, grade school, and high school. I think it had a lot to do with this teacher. But once I took my first physics course with him, I fell in love with physics and decided to major in it. That is how I got into it. I think after being here as an examiner and seeing how you use your technical background to evaluate applications, I really was more intrigued with the people aspect of the job. It seemed to me that as an examiner I knew exactly what I had to do and I knew when I had to do it. I knew how much I had to do to get to the next promotion and I was very motivated to move through the career ladder. I liked the idea that it was totally on my own merits. I did not have to wait for someone to leave to get to that primary examiner level. So I really liked that part because I am pretty disciplined.
QUINN: That is still the case, right?
FOCARINO: Yes, that is still the case. And so I liked that aspect of being in control of your own destiny, I really like that a lot. But I also saw that there were examiners that would really push themselves and do a lot more work and get the awards and then there were examiners that would do the minimum and that intrigued me. Well, what is the difference between these two people and what would it take to get the person that is content with doing the minimum that they have to do to be able to get a fully successful rating, for example, and to try to find out how to move that person in a direction where they are doing more and they are getting promotions and they are getting awards. They are doing more because they want to do it. So that really intrigued me.
QUINN: Okay. Now, the SPE that you mentioned, that would not happen to be Kyle Howell, would it?
FOCARINO: My SPE? No, but I know Kyle Howell very well and he was in the general mechanical area that I happen to be in. And he was one of the SPE that I always would see, and I had heard about him. He was not my particular SPE, but he had a fabulous reputation. And then when I became a SPE, as a newer SPE, he was one of the people that I definitely tried to emulate because he had such a rapport with his examiners, but also his peers. He was just so well respected.
QUINN: Yeah, Kyle is one of my dearest friends.
FOCARINO: Oh, he is great.
QUINN: And I have often joked with him that it is too bad that we cannot clone people because we ought to clone him and send him back into the corps.
FOCARINO: Yes. He would be, if we could get him back in some capacity, great as a mentor to our new SPEs. Because he did know how to approach examiners and he had a very quality approach and he was really interested in a quality job being done. And he was able to I think get the most out of his people without having it turn into an adversarial relationship. People wanted to do their best for Kyle Howell.
QUINN: And that moves me to my next question. How do you go about fostering the work environment that you talked about; getting the most out of the examiners and having an incentive structure that makes them want to achieve more and more? It seems to me that some of the problems of the past that the office had, was examiners cutting back, or at least that was the perception; that they were just going to do the minimum and we lost, it seemed for a while, the high achievers. So what has the office done to change that? The office seems to be digging into the backlog quite a lot.
QUINN: So I suspect a lot of this is going on right now?
FOCARINO: Yes. I think the way I would describe it is the approach has taken a focus of incentives and rewards and treats performance problems as fixable at least that is the initial approach. The quality review process is a good example of it. So for example, an examiner could have the attitude of, “If I do more work then I open myself up to more possibility for errors, right?” And that is true. So if you look at that whole structure of looking at the quality of work and then what do we do on an individual examiner basis when we find out the examiner made a mistake, how we handle that, is the key to how they approach their end of it, how much they do. So if they feel like they are becoming more vulnerable because they do more work and they may get hit with a quality error which is going to impact their ability to get their awards and things like that, there is a very chilling effect on them wanting to do more. But if they know that if a quality review program sees an error and we use it as a training opportunity where we correct the error and we do not compromise the examiner’s ability to get incentives but rather use it as a training opportunity if we think we can correct it, things may be different. Especially if, instead, we go to the examiner with a quality assurance specialist or some other resource and give them the necessary training to correct that error regardless of whether they are making it routinely, or even in one case. Of course if we cannot correct the errors, then it may be a different outcome. But if you remove that chilling effect then the examiners are much more willing to stretch themselves because they know that they are not becoming more vulnerable and they know that in the amount of time they are given if they do make mistakes then we will provide them with training and the SPEs will coach them. And we have a performance management system that will take into account the quality of their work. But the independent quality review aspect of it has taken on a different approach – more of a holistic approach where we see the errors, we train, and we try to feed that back into the examination system and the individual examiners do not get the errors for that type of thing. So I have seen that change the desire of the examiners to want to do more work.
QUINN: And that is a change I think that we talked about two years ago now. Where you took some of the quality review folks and moved them into the tech centers to be mentors? Is that a fair characterization?
FOCARINO: Right. about 50% of their time is spent working with the technology centers; developing training materials, delivering the training to examiners, working with the examiners as a resource. In the past the quality review was even in a separate building. They were totally separate entities and it seemed to me to be sort of an “us versus them” mentality. “I got called an error on a case, well, I do not agree with it.” And if you have a primary examiner that is been here for 30 years, that person typically is going to take a lot of pride in their work and they think they are making the right decisions. So if their application is looked at by someone in the office of patent quality assurance and then it is determined that perhaps they took an incorrect position then you want to have that dialog in the right way so that the primary examiner who has invested a lot of their life here feels like they are learning something and they do not feel denigrated because they might have taken an incorrect position in one application out of the thousands that they look at in a limited amount of time. And so I think changing that whole dynamic is critical.
QUINN: Another thing that you were involved in a while ago which is the ombudsman program.
QUINN: I have heard good things about it, but I also hear what is a frustration of some attorneys. That is, figuring out what is a procedural matter and what is substance sometimes can be very, very dicey. I think everybody likes the ombudsman program and likes the idea, but I was wondering how is it playing out? Because it seems like a lot of issues do blur that procedural substance line.
FOCARINO: And I think they do. I think you are right and what we are about to do is share some data that we have collected now in the ombudsman program. What we have done is we have tracked issues according to the type of issue it is, whether it is a procedural issue or a substantive issue, the frequency that those issues come up before the ombudsman and just sharing data like that. The other thing is you have to have the right people that are performing this role. For example, if it a primary examiner makes a decision and the SPE needs to be called about that particular case, there has been a perception or sentiment that the SPE will support the primary, resulting in not necessarily getting a different outcome.
Selecting an ombudsman that is not in that chain of command but knows how to work with people again to say, “I am looking at this case and I think this is why it got off track and here is what I think should be done.” And having the examiner and the SPE say, yes, that is right, let’s make it better. Not, “We are right and you are wrong.” It is not a matter of right and wrong it is a matter of doing the right thing. We are trying to remove that sentiment. We want it to be a natural reaction, frankly, that when people ask you to do something differently, you do not say, “Okay, I have been doing it wrong, but consider that, there is a better way to do it, perhaps.” So it is critical that you have the right people in those roles.
And one thing I would like to see happen, and it is something that obviously I would have to work with the union on, but I would like to see examiners at the ends of their office action suggest that applicants avail themselves of the ombudsman program should they find that there are things that are off track. What I still hear is that people are really reluctant to contact the ombudsman because they do not want to get on the bad side of the examiner or the SPE. We want to see a change in the culture so no one would think of it that way. It is not getting on the bad side, it is a situation where things happen in some cases, people misunderstand things, and how do you get things back on track so that neither side feels, “Why does there always have to be a right and wrong? Just how do we do things better?” I would like to see the examiners themselves suggest it. And that way that will shift that dynamic of people thinking that the examiners will get upset because if they are the ones that are suggesting it, and they believe that it is a neutral and objective process, then it is only going to improve the system.
QUINN: Right. So you all are happy with the ombudsman program and the direction it is going in?
FOCARINO: We would like to expand it. We would like to make it more robust. We would like to get more advertisement out there that it is available. We would like to create more positions internally where people who have the right approach can handle these kinds of situations so that it perpetuates itself internally, too. I would like to see that spread internally so that more and more of our first line managers see the process for what it is. And so when they are dealing with their own examiners word spreads throughout the whole organization. That there are not just a few people that can do this. Every person should be trained to be able to do this. In any service industry you work for.
PREVIEW: In Part 2 of the interview we discuss a day in the life of the Commissioner for Patents, negotiating with the Examiner’s Union and implementation of the America Invents Act.
COMING ATTRACTIONS: Next week look for my interview with Deborah Cohn, Commissioner for Trademarks, which took place on February 3, 2012.On January 27, 2012, I had the privilege to interview Margaret Focarino, who is the new Commissioner for Patents at the United States Patent and Trademark Office. Focarino, known simply as “Peggy” throughout the Office, rises to the position of Commissioner for Patents after the departure of Bob Stoll. At the beginning of the Obama Administration, after the resignation of then Director Jon Dudas, Focarino became Acting Commissioner for Patents, a position she held until the appointment of Bob Stoll.
About the Author
Gene Quinn is a US Patent Attorney, law professor and the founder of IPWatchdog.com. He is also a principal lecturer in the top patent bar review course in the nation, which helps aspiring patent attorneys and patent agents prepare themselves to pass the patent bar exam. Gene started the widely popular intellectual property website IPWatchdog.com in 1999, and since that time the site has had many millions of unique visitors. Gene has been quoted in the Wall Street Journal, the New York Times, the LA Times, USA Today, CNN Money, NPR and various other newspapers and magazines worldwide. He represents individuals, small businesses and start-up corporations. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.