USPTO pays patent examiner for 730 hours fraudulently not worked

By Gene Quinn
August 20, 2015

USPTO administration building, Alexandria campus.On Wednesday, August 19, 2015, the Office of Inspector General at the Commerce Department issued a scathing summary of an investigation into an unnamed patent examiner who was falsifying time records. Called only “Examiner A” in the report, the examiner in question also received extraordinarily low performance evaluations, receiving a reprimand for poor quality on nine (9) separate occasions. Rather than cooperate with the IG’s investigation Examiner A resigned and declined the opportunity to review and comment on the investigation findings.

While the extremely poor job performance of Examiner A seemed to somehow fall under the radar at the United States Patent and Trademark Office (USPTO), the fact that Examiner A was bilking the Office for work not performed went unnoticed until an anonymous whistleblower notified superiors. The IG’s report explains:

In August 2014, two supervisory patent examiners at the U.S. Patent and Trademark Office (USPTO) walked into their offices and found copies of the same anonymous letter. The letter alleged that an examiner (Examiner A) “never shows up to work” and “seems to get away with anything.” The note stated that Examiner A came into the office only at the “end of each quarter” to submit work and described Examiner A’s work product as “garbage.” The note questioned how the supervisors “could allow this type of behavior” to occur and why Examiner A had not “been fired for performance.” After receiving the anonymous letter, both supervisors brought the document to the attention of their manager. Their manager subsequently contacted the USPTO’s Employee Relations Division (ER), who then conducted an analysis of the data related to Examiner A. ER discovered hundreds of hours of apparent time and attendance abuse by Examiner A and contacted the Office of the Inspector General (OIG) of the United States Department of Commerce concerning the magnitude of Examiner A’s suspected abuse.

According to the IG report, “Examiner A committed at least 730 hours of time and attendance abuse, resulting in the payment of approximately $25,500 for hours not worked in FY 2014 alone.” This represented forty-three percent (43%) of the work hours certified by Examiner A during FY 2014. To arrive at this figure the IG explained that they gave all possible favorable inferences to Examiner A, but that after reviewing time spent on campus, connected to USPTO networks from off campus, and work actually preformed on the government issued laptop provided to Examiner A, at least 730 hours were certified which were not worked. The report also hypothesizes that since all favorable inferences were given to Examiner A there is quite likely far more time not worked during FY 2014.

The IG concluded that there was sufficient evidence to believe that Examiner A violated 18 U.S.C. §§ 287, 641, and 1001, 5 C.F.R. § 2635.101, and the USPTO’s policy on work schedules. The matter was referred to the U.S. Attorney’s Office for the Eastern District of Virginia, which declined to pursue the matter. Notwithstanding, the IG report encouraged the USPTO to take legal action to recover the $25,500 overpayment to Examiner A.

Not surprisingly, the IG recommended that the USPTO fully audit Examiner A’s FY 2015 time to determine if there were any hours paid that were not worked. Further, the IG recommended that the USPTO “review its policies to determine whether adequate controls are in place to monitor the time and attendance of its employees and ensure the controls are functioning properly.” It is indeed troubling, although not entirely surprising, that the USPTO does not seem to have the ability to detect abusive practices like this without a whistleblower coming forward.

This episode, together with past episodes (here and here) relating to some Patent Office employees not having work assigned, raises questions about the much celebrated USPTO work from home program.

For some time now I have been critical of the work from home program, although I understand why it exists. When the Patent Office moved to its current Alexandria, Virginia location in 2006, the facility was already too small for the number of patent examiners. Whether it was a failure to properly plan at the time the new campus project was undertaken more than 5 years earlier, or whether it was as the result of unexpected growth of the Patent Office over a very short time frame, the reality is that the physical plant was just too small to accommodate the needs of Office. That, of course, meant that a work from home program had to be vigorously pursued.

The statistics show that patent examiners working from home are at least as productive as they were as a group when they were working at the Office. Undoubtedly, the episode relating to Examiner A demonstrates that not all patent examiners working from home are as professional and conscientious as they should be. There is also no doubt that the USPTO seems helpless to identify abuses, which is extremely problematic. But the biggest issue with the work from home program is that it has caused a brain drain at the USPTO. New patent examiners who do not yet have signatory authority and are undergoing training are not working from home. This means that those patent examiners that are allowed to work from home are the mid-level patent examiners who make up the core of the examining corps.

Whether the Office wants to acknowledge it or not, this means that there is a vast amount of institutional knowledge no longer within the building, which cannot be good news for new patent examiners. Human nature suggests that there are a limited number of times a new employee will seek out their supervisor or trainer for assistance. Previously those new patent examiners would receive community mentoring and training from those more senior but who are not supervisors. Today that community mentoring just cannot happen because so many patent examiners work remotely.

While this episode raises an interesting question about a patent examiner abusing an employment compact, it also raises a far more important issue about poor examiner performance. Why was Examiner A still working for the Patent Office after nine (9) reprimands for unacceptably poor quality? Why was Examiner A still working for the Patent Office if he refused to respond to inquiries from patent applicants and their representatives?

We all know that there are patent examiners who produce predictably poor quality, and who have a reputation for being impossible to work with. We know there are patent examiners who do not issue patents unless they are ordered to do so by the Board. We also know there are patent examiners who refuse to give meaningful consideration to an application until an Appeal Brief has been filed. Unfortunately, the Office seems wholly incapable of dealing with this level of examiner abuse, which is admittedly in my opinion presented in only a small percentage of examiners. Overwhelmingly patent examiners are hard working professionals who play a critical role in our innovation system. But if the Patent Office cannot uncover an examiner who isn’t even working the inability to deal with (or fire) recalcitrant examiners starts to make a lot more sense.

Applicants must start complaining about poor quality, as well as examiners who refuse to respond to inquiries, which is a larger problem than some might think. The highest levels of management at the Patent Office must be appraised of these problems. Management at the Office must also be more aggressive in getting rid of examiners that haven’t issued a single patent for years, those who refuse to return phone calls, and those who are being paid for work they are not doing.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 14 Comments comments.

  1. Bob August 20, 2015 3:11 pm

    Notice how “not issuing a single parent for years” is lumped in with time card fraud. No bias there!

  2. Night Writer August 20, 2015 3:14 pm

    I don’t know. I don’t want to see the examiners thrown under the bus. From my experience, examiners are pretty good given the constraints they are under. I think that Lee should resign and they should appoint a director that has actually prosecuted a patent application. What we need to do is find ways to help the examiners get their job done.

  3. Curious August 21, 2015 12:17 am

    Frankly, I do not have a problem with telecommuting at the USPTO. Sure, it deprives individuals of the ability to interact with one another in an ad hoc basis. However, there are plenty of (technical) tools available (although there are those that might argues that these tools are little more than “abstract ideas”) that facilitate communication between far flung individuals (or teams). This is where our information economy is headed, so we might as well get used to it. Commutes in and out of DC can easily run an hour or more so providing workers the ability to work from home gives them a better quality of life, which will improve their morale and hopefully their productivity (as well as retention).

    Telecommuting isn’t for everybody (particularly the inexperienced), but there is definitely value to it.

    Also, I’m sure that there are those at the USPTO that abused the system in a comparable manner except that were physically present at campus the entire time. While I understand this is a USPTO “story,” this is not a USPTO problem. Whether it is big business or big government, there will always be those that find a way to take advantage of the lack of strict oversight.

    To be clear, the lack of strict oversight is not necessarily a bad thing. In order to be most efficient, you cannot have a “watcher” over every worker (and watchers on those who watch). Ultimately, you have to trust that the employee is doing what he/she is being paid to do and make it harder for them to game the system (with the realization that it is impossible and not cost-effective to entirely prevent the system from being gamed).

  4. Curious August 21, 2015 12:18 am

    Management at the Office must also be more aggressive in getting rid of examiners that haven’t issued a single patent for years.
    They’ll have to hire an entirely new crop of examiners for 3600 — not that it isn’t a bad idea (just make sure the new crop of examiners is accompanied by a new crop of management in 3600).

  5. Manu Mitra August 21, 2015 12:40 am

    And the person who works more than actual hours and does not get paid for extra hours; gets fired. Great!

  6. Eric Berend August 21, 2015 5:41 am

    I must respectfully disagree. This situation of a lack of facilities space for such a critical function, is poor planning: mismanagement, plain and simple.

    If the people responsible for facilities planning some “five years earlier” and going forward, had pursued this obvious and necessary responsibility with anywhere near the same fervor with which they or their peers arbitrarily (and with seeming maliciousness) eviscerate patent owners’ rights at virtually every possible turn; then, there would undoubtedly be an excess of such campus space and no “crisis” of plant inadequacy to address in such a desultory way.

  7. Dan Feigelson August 21, 2015 9:42 am

    Gene, the link to the summary doesn’t work for me.

    Blows my mind that, based on your report and that in the Washington Post, there doesn’t seem to be a discussion in the report of the adverse impact on applicants who had applications pending before this charlatan – it’s all about whether or not the guy put in the hours. Those applicants who applications weren’t examined can in theory get PTA to compensate, but what about those who got bogus rejections at the end of the quarter when “examiner A” submitted garbage work? Those are the people who were defrauded and who were harmed.

    While I think in principle allowing for flexible work schedules, including telework, is a good thing, I agree 100% that the PTO has lost institutional memory with its program (coupled with the attrition of experienced examiners under Dudas). No way can current trainees be getting proper training when a significant number of their more experienced peers are out of the office – it’s just a different environment when you can wander down the hall and pick the brain of someone you’ve seen around and who’s got more experience.

  8. Concerned Citizen August 21, 2015 9:48 am

    “Undoubtedly, the episode relating to Examiner A demonstrates that not all patent examiners working from home are as professional and conscientious as they should be. There is also no doubt that the USPTO seems helpless to identify abuses, which is extremely problematic. But the biggest issue with the work from home program is that it has caused a brain drain at the USPTO.”

    Interesting statement since Examiner A was an employee who worked from the Alexandria Campus. Further, the “alleged” telework abuse involved no more than a few employees; hardly a huge statistic when you consider an entire agency. Of course, not that time and attendance abuse is acceptable on any level, but just an observation that perhaps some fact checking at a greater level is in order before you throw all Examiners “under the bus”, as stated by “Night Writer” . Abuse and time fraud can happen in any organization, big or small, and to lump all Examiners into this category is concerning. This is an issue, telework or not, of dealing with employees who abuse the system in a timely and appropriate manner. The USPTO has apparently dealt with the on campus worker, Examiner A (as he resigned prior to action) as well as the other very small number of telework employees who were found to have abused the system. Again, in agreement with “Curious” that this certainly is not just a USPTO problem. It would be nice once in a while if Examiners were actually recognized here as being more than just abusers of a system who are unreasonable and recalcitrant. It’s tiring to read the constant bashing, especially given that most of the 8500+ men and women of the Examining Corps work extremely hard to do their jobs, yet have to suffer at the hands of the 1% who don’t.

  9. Gene Quinn August 21, 2015 10:55 am

    Concerned Citizen-

    You know for fact that Examiner A worked only from the Alexandria Campus? Then why did the IG report make reference to a laptop he was given so he could remotely access the USPTO network?

    My guess is you are unfamiliar with the work from home program. Even those examiners who work from home have a responsibility to be on site at a campus as least a few days a month.

    -Gene

  10. Bob August 21, 2015 11:34 am

    The WAPO article on the IG report shows part of the anonymous letter. The letter points out that examiner A was a GS-11. As a GS-11, he would have at most 2 days of teleworking per month (1 day/biweek).

    So he probably was teleworking, but that wasn’t what enabled the time card fraud.

  11. Concerned Citizen August 21, 2015 4:15 pm

    Dear Gene-

    I am VERY familiar with the work at home program at the USPTO. I was merely pointing out the fact that the report refers to the employee as permanently stationed at the Alexandria headquarters. The report goes on to state that other Examiners, under the same supervisor, were working from home. The report further points out, as referenced by “Bob” that Examiner A was a GS-11, only entitling him to a limited number of work from home hours, had he even been eligible. However, because of poor performance, he was not. He was only eligible to work overtime hours from home, which was only in place for a limited amount of time, again due to poor performance. Examiner A was not what is considered a full-time, USPTO work from home employee. That was my only point in effort to show that it is not merely a telework issue. I do thank you for all the great articles that you do post and I enjoy reading on a daily basis.
    Most sincerely-
    Concerned Citizen

  12. Gene Quinn August 22, 2015 10:59 am

    Concerned-

    I see. Thanks for explaining it for me. That all makes sense.

    The only question I would have is whether the general rule about a poor performing examiner not being allowed to work from home was followed in this situation. Perhaps I jumped to too many conclusions here with the work at home program, but it seems to me that the lack of oversight on the part of the PTO is all the more alarming if this fellow was actually supposed to be working from campus full-time.

    This gives me more questions to follow up with.

    -Gene

  13. anonymous September 9, 2015 10:57 pm

    This ain’t nothing. The inspectors should be investigating the absurd amount of support contractors doing nothing of any real value for rates ranging from $120 to $190+ per hour. There are an awful lot of contractor project and program managers doing nothing all day long. Oh sure they show up for work…but what are they doing for that kind of pay?

  14. Anonymous examiner September 28, 2015 11:31 pm

    The office is going downhill. When the maangers don’t even have to come in, how can they have any clue what’s going on with their employees? And how are new employees supposed to be trained? Virtually?