Commerce IG Report: Patent examiners defrauded government of millions for unworked time

By Gene Quinn
August 31, 2016

Department of Commerce, Herbert C. Hoover Building in Washington D.C.

Department of Commerce, Herbert C. Hoover Building, in Washington D.C.

Earlier today the Inspector General of the United States Department of Commerce released a scathing report titled Analysis of Patent Examiners’ Time and Attendance, which painstakingly details what appears to be widespread patent examiner financial fraud on the Patent Office.

The investigative report, prompted by interest caused by the infamous “Examiner A,” who falsely claimed he worked 730 hours in fiscal year 2014, concluded that for the 15-month period of August 10, 2014 through November 28, 2015, patent examiners submitted 288,479 hours that could not be supported or verified as being worked. These unsupported hours equated to $18.3 million in over payments.

According to the Inspector General, a conservative approach to the evidence was taken to ensure that the amount of unsupported hours did not unfairly assume any particular examiner was not working when they claimed to be working. However, the report explains that a less conservative methodology would “have increased the total unsupported hours by an additional 327,000 unsupported hours,” making the total of unsupported hours 615,479 unsupported hours, which would then correspond to over $39 million in over payments to patent examiners.

Even using the conservative methodology ultimately settled upon by the Inspector General, there are several findings that jump off the page of the report, such as:

  • Approximately 28.5% of the total unsupported time consisted of overtime hours.
  • 415 patent examiners accounted for 43% of the unsupported hours, which if worked would have lessened the patent backlog by an estimated 15,990 cases.
  • 310 of those 415 patent examiners received above-average annual performance ratings and yet accounted for nearly 98,000 unsupported hours.
  • 56 of those 415 patent examiners claimed unsupported hours equivalent to three full days for every 80 hours or computer-related work time.

What makes these facts so damning is that it shows hundreds of patent examiners are receiving high performance evaluations and yet apparently bilking the government. This alone is a serious indictment against Patent Office institutional controls. If the Patent Office doesn’t even know what their stellar and above-average employees are really doing what do they really know about what patent examiners are really doing?

Production Goals

But wait, things get worse. The report alleges: “USPTO is paying production bonuses to examiners who are possibly defrauding the agency.” The report addresses this conclusion where it discusses examiner production goals, which are characterized as out of date and not reflective of current efficiencies. The report concludes that examiner production goals need upward revision, which will not be well received by the union, or those patent examiners who have not been engaging in financial abuses.

The report explains:

The OIG’s analysis—particularly the data regarding examiners who claimed a significant amount of unsupported hours and received high performance ratings—suggests that the USPTO’s production goals need revision upwards. As noted above, the majority of unsupported hours identified in the OIG’s analysis are associated with examiners who received above-average or exceptional performance ratings. In fact, the vast majority of the 296 examiners with 10% or more unsupported time during the 9-month period received “Commendable” or “Outstanding” ratings on their annual performance evaluations. Therefore, according to the USPTO’s rating system, their scores indicate that they are high performers who meet or exceed their production goals on a consistent basis. They also received production bonuses for meeting their goals. Yet those examiners accounted for 42,384 unsupported hours, with 14,416 unsupported hours of that total paid as overtime.

These findings suggest that those examiners met—or even exceeded—their performance goals by completing their work assignments in less time than allotted by their production goals. This, in turn, calls into question the adequacy of those production goals and suggests that a potential abuse of time is possible because the production goals for many of the art units do not reflect efficiencies in work processes. The findings also suggest that USPTO is paying production bonuses to examiners who are possibly defrauding the agency.

The production goals for examiners were adopted in 1976 and has been revised up several times, but not reevaluated. The report concludes this has made it easier for patent examiners to meet their production goals even as technological improvements have facilitated patent review.

And just when things couldn’t get any worse for the Patent Office, the report takes a swipe at Office management by acknowledging the obvious: “[T]he sheer volume of unsupported hours suggests that the USPTO’s internal control system used to monitor and prevent time and attendance abuse remains deficient.”

The Patent Office Response

“This report serves as a resource in our ongoing efforts to improve,” said USPTO Chief Communications Officer Patrick Ross in a prepared statement released on the Inspector General’s report.

“It is important to recognize and understand that the OIG report did not focus on individual employees; instead, it was based on a comparative analysis of large computer record data sets,” Ross explained. “The OIG concluded that there was a lack of a digital footprint in approximately 2% of the total hours claimed by the patent examiners during the 15 month period – a percentage that continued to shrink following the introduction of new USPTO controls, and during the course of the IG review. The USPTO recognizes that there may be many reasons for the lack of a digital footprint and is committed to analyzing the recommendations offered by the OIG, continuing to conduct our own review, and, if needed, improving the extensive measures already implemented.”

Ross would go on in his statement to talk about the “stellar work” of the Trademark Office, and you have to give him credit for attempting to put lipstick on this pig, but this is an astonishingly bad report. The Office control mechanisms are deficient and patent examiners seem to be defrauding the agency, it doesn’t get much worse than that. It is also further proof of what has continued to come to light in recent weeks about how some patent examiners simply ignore office policy, ignore the Patent Trial and Appeal Board, ignore the Federal Circuit, preventing cases from reaching appeal, and issuing bogus rejections with impunity. Based on what we know is going on in certain Art Units and the conclusions reached in this report there seems to be a near complete breakdown in institutional control at the Patent Office.

Recommendations

Based on the findings of the investigation, the Inspector General made the following recommendations:

1. The USPTO should reevaluate its examiner production goals for each art unit and revise them, to the extent necessary, to reflect efficiencies in work processes from automation and other enhancements.

2. The USPTO management should require all examiners to provide supervisors with their work schedules, regardless of performance and ratings.

3. The USPTO should reinstate the USPTO requirement that employees use their USPTO-issued ID badges to exit the USPTO facilities through the controlled-access turnstiles during weekday working hours.

4. The USPTO should require all teleworkers to remain logged into the USPTO network during their working hours when the network is available to the teleworker.

5. The USPTO should review its policies, procedures, and practices pertaining to overtime hours to identify and eliminate the areas susceptible to abuse.

6. The USPTO should consider deploying SOHO routers by all teleworkers.

Conclusion

There is no doubt that there are many, likely still the vast majority of patent examiners, who do take their jobs very seriously. I know patent examiners who are very conscientious and struggle to meet their production goals because they do a good job and do not simply issue frivolous rejections. As with so many cases of abuse, those that are abusing the system will make it that much more difficult for everyone else moving forward. This is precisely why the Patent Office must regain control and establish a new culture.

The problem the Patent Office has is that management has absolutely no institutional control over patent examiners. Office struggles to get patent examiners to allow patents and follow Office guidance and policy is well known. That being the case, this story about patent examiners committing financial fraud on the Patent Office simply rings true and fits within the narrative that we know. The facts found and reported by the Inspector General simply reinforce everything we know about the philosophy of rogue examiners, so whether it is true or not ceases to be relevant. Patent examiners doing whatever they want feeds the ongoing narrative of an Office that is out of control.

Patent examiners fudging time sheets or even outright submitting fraudulent time sheets is just further proof that some examiners can and do get away with whatever they want. The Office seems wholly incapable of doing anything about it on any level. But as much as we can and should point to lack of certain institutional and management controls, the real problem is the Patent Office cannot realistically fire anybody even for cause. It is more difficult to fire a federal government employee past their probationary period than it is to fire a tenured professor. Unless and until that changes, or unless and until the Patent Office brings back the old practice of imposing internal exile upon those who refuse to follow Office policy, nothing productive or useful will be accomplished.

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 80 Comments comments.

  1. LJ August 31, 2016 2:27 pm

    Unfortunately, this has been a known issue for a while. See http://arstechnica.com/tech-policy/2014/08/patent-examiners-are-routinely-abusing-work-from-home-privileges/

  2. temprand August 31, 2016 2:46 pm

    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.

    I examine full time from home. When I was in the office, I periodically took time for the above activities. I don’t consider that “fraud,” and I don’t know anyone else that would. But since I am at home, if I step away from my computer, all of a sudden I am committing fraud?

  3. Anon August 31, 2016 4:06 pm

    Temprand,

    As noted, the attempt to diminish the report by spreading the nefarious actions over the entire Corp to arrive at the “2%” number is a logical fallacy.

    A much smaller number of people are engaged in a much more egregious defrauding of the Office – and by direct proxy, the innovation community whose funds are the sole source of monies for the Office.

  4. not billing this August 31, 2016 5:10 pm

    I have to say – big eh generally. Everyone knows that big systems (whether governmental or private) are rife with politics, croynism and fraud, among other things.

    This being said, it is a staggeringly large amount for the time period. I would, however, like to see these numbers put more into context with other federal/state systems (normalized as best as possible).

    BTW – I agree with you Gene. The majority of Examiner’s I have worked with are conscientious but I have worked on enough cases over the years to know that there are some real stinkers out there (in all levels).

  5. temprand August 31, 2016 11:38 pm

    Anon – I agree. And I would like to see that small percentage of examiners dealt with, so that the rest of us can stop being stuck unfairly with their reputation. So I think we can agree that it is not a big deal for most of the Office. And we agree that is should be dealt with. While I don’t often see eye to eye with Mr. Gene here, I always appreciate his recognition that a good portion of examiners are doing the job well and honorably.

  6. ExEx September 1, 2016 12:07 am

    The idea that PTO automated systems have improved examining efficiency is laughable. When I retired 5+ years ago, I marveled at how difficult it had become to do even the simplest things with an application. File-wrapper chores that would take seconds in the old paper world could take many minutes in the new electronic environment (due to network delays and incredibly bad software). This same computer induced friction extended to the higher functions in the examining chain. I would be surprised if much has changed; probably gotten worse.

  7. N September 1, 2016 8:57 am

    Maybe the alleged abusers are above-average examiners who can examine faster than everyone else and use the excess time to do additional work and claim overtime not actually spent. In this case the above average examiners production rate should not be used to determine the production goals for everyone.

    Maybe the production goals are indeed too low, and the alleged abusers are really just average examiners who can do the above and claim overtime not actually spent, and all other average examiners are actually abusing the system by cruising, but not claiming extra time. In this case raising production goals might be reasonable.

    Or maybe the alleged abusers produce more in less time by compromising their quality and the quality review system does not catch this (i.e. there is a problem accurately measuring quality). In this case the quality measurement system needs to be improved, and production goals should not be based on these examiners’ production.

    In all likelihood it is a mixture of the above.

    How does it make sense to set production goals based on the top performers? Can quality of examination actually be accurately measured in a timely manner?

    If production goals are based on average performers it necessarily follows that high performing examiners will be able to exceed the production goals. So the high performer has options – meet the goals and use the ‘extra time’ in other ways (work or not work-related, at least the latter being an abuse); produce more in the allocated time (production bonus); use the excess production for OT/exceeding goals – additional bonuses (an abuse with respect to OT, although they could also actually work the OT and really, legitimately exceed goals).

    High flyers (a small percentage) are a challenge – but keep in mind the Office is generally getting what it wants – more production. Although of course the high flyer should only get paid for actual work done and time spent.

    The more insidious abuse is the average examiner working slower than they are reasonably capable of – but this is something that is not straight-forward to assess (which is not to say it is acceptable).

    I don’t know that basing an increase in goals on high-flying alleged abusers of the system makes sense. In an ideal system, goals could be increased, quality of work and stress levels of employess monitored and then adjustments made. But it is not such a simple system.

    And yes, work technologies have improved, but so has the sheer volume of information an examiner must assess, not to mention the ever evolving complexities arising from juriprudence.

    It is just not that simple of a system… yes, put in more checks and balances, but in terms of increasing production goals I don’t know that this alleged abuse should be the basis for determining this.

  8. Bob Hodges September 1, 2016 9:29 am

    “These findings suggest that those examiners met—or even exceeded—their performance goals by completing their work assignments in less time than allotted by their production goals. This, in turn, calls into question the adequacy of those production goals and suggests that a potential abuse of time is possible because the production goals for many of the art units do not reflect efficiencies in work processes.”

    But if the worst offenders for un-worked time have high production goal, isn’t it more likely that their work product is deficient. It takes much less effort to produce deficient office actions.

  9. Gene Quinn September 1, 2016 11:22 am

    Bob-

    You raise a point that jumped out at me as well, but one that I didn’t want to get into with this initial article. In areas of the Office dominated by Alice, Mayo and Myriad rejections it would seem far easier for examiners to meet their production burdens than elsewhere. If you read the Office Actions in the E-commerce Art Units, for example, it would seem that very little time or energy is put into simply saying no. That may be unfair based on the amount of haggling that I hear is going on behind the scenes between some examiners who really do want to issue and their SPEs, but rejecting at all costs using circular logic and obviousness rejections that don’t even address all claim limitations would seem to be something that a trained professional could do relatively quickly.

    -Gene

  10. John Doe September 1, 2016 12:49 pm

    This article is stupid and completely wrong. The USPTO does not waste any money by paying people to work OT. For example, if you an examiner and you finished 6 counts for the bi-week. However, you only need to submit 4 counts for the 80 hours and you have two more counts left. If you don’t get pay for those two extra count you will not submit it. Since you get paid overtime why not? So technically the PTO does not waste any money but gain from production. It just like if you paid someone to fix your car. He said it will takes 3 hours to do the work for the price of $500 and you agreed. However, when he start working it only takes him 2 hours you still have to pay him $500. Just like if he told you 3 hours but it ended up taking you 4 hours you still only paying him $500. So as for wasteful spending there is none. As for accurately reporting the time it goes both way. So the PTO need to come up with a better system. Even the OIG inspector is wasting time having bathrooms break or smoke break or tv break or whatever breaks when drafting up this crazy report.

  11. Gene Quinn September 1, 2016 1:34 pm

    John Doe-

    Clearly, the article is not stupid. You can disagree with the IG report, but the article accurately reports what the IG report found and concluded.

    First, I’ll note that overtime is supposed to be for time worked that is OVER. If you are supposed to be spending 3 hours on a task, only spending 2 hours on the task, but putting 3 hours down on a time sheet that is clearly and unambiguously the definition of fraud. If you were an attorney billing paying clients in this manner you would be at least suspended and likely would be disbarred. It is that simple. Attorneys have been disbarred for doing exactly this.

    You might also be interested in learn that patent examiners are paid a salary. You give an example of a fee for service situation where a flat fee is quoted and accepted by a paying customer. In the flat fee context if it takes longer or shorter no longer matters to the customer. It does, however, matter to the employer paying the person doing the work. You are comparing apples and oranges. Under no circumstances would it ever be appropriate to work 27 hours a week and put 40 hours on a time sheet (which is the same ratio you give in your example — working 2 hours for a task that should have taken 3 hours).

    The part of the article that was clearly not stupid is that the production quota is grossly out of date and in serious need of revision. If patent examiners are being given 3 hours do to a job that only takes 2 hours that means one of two things. Either the estimates of how long it would take to do the job were wrong and need to be revised, or the person doing the job cut corners and didn’t do a quality job. In some Art Units, given the reversal rate at the PTAB, a number of examiners are producing particularly low quality. Further, looking at the number of patent claims instituted as being likely invalid and the number of patent claims found invalid in IPR, there is quite clearly inferior work quality by at least some patent examiners. Given this report and your comment one has to wonder whether that is because examiners as a rule are only putting in two-thirds of the time on every project.

    Taking 2 hours to do a job that should take 3 hours raises significant questions to those who are being objective. Something is wrong and needs to be fixed one way or another. Either production quotas need to expect more or examiners need to slow down and do a better job.

    -Gene

  12. Anon September 1, 2016 4:33 pm

    The “examiner apologists” and “this report must be wrong” are frothing more than just a little bit…

    Succinctly put: fraud is fraud, and there are no two ways around misrepresenting time worked.

  13. temprand September 1, 2016 5:31 pm

    Gene @ 11 – you are correct about the very basic definition of saying 3 hours when you only did 2 is fraud. You are also correct that the count system should be revisited. The biggest problem is that, even if you somehow kept quality consistent between examiners, some can effectively do a task in 10 hours that takes examiner on the other end of the spectrum 20 hours. But the PTO requires the same from these two hypothetical examiners. There should be a way for examiners to get paid commensurate with the services they provide to the PTO. The real issue that keeps coming up and gums up the system is “quality.” Every examiner could double their output by reducing their quality. That is not the solution we want. We want examiners to meet a certain level of quality, and then they can get paid based on how much quantity they produce at that level of quality. However, right now the only real measure of quality is “clear error,” which is used for the yearly evaluations, and basically requires an examiner to have missed or misapplied a 102 or 103 reference. This is a very low, bare-minimum level of quality.

  14. temprand September 1, 2016 5:38 pm

    Anon @ 12 – you’re a lawyer, right? You realize there are at least two sides to everything. Here’s my question. What is “time worked?” For examiners in the office, I think most people would say that as long as they are in the building, they are “on the clock.” So if you went out for coffee, you would be on break, but if you got coffee in the break room in the building, you would still be on the clock. That’s the same as the law firms I’ve worked at. The harder part is when you work from home. If I print out several applications or references to read through, then spend all day reading them on my couch, am I working? What if I read them in my office chair? Is there a difference?

    I’ve worked at engineering companies (and everyone knows someone like this) where there was one guy who spent at least 4 hours a day bouncing from cube to cube talking about whatever. He got paid for the same 8 hours the rest of us did. Was he “working” because he was in the office?

    I don’t have an exact answer, I’m actually curious if you have any criteria that could be used to make the issue more clear. I personally feel that if I am doing something that furthers my duties at work, it is “time worked.” If I take a break to throw the ball with my kid outside, that is a break, not “time worked.” My computer records likely look the same in either case, though. Maybe I am naive in assuming that most examiners know the difference and can be trusted to honestly report it.

  15. Shawn September 1, 2016 7:13 pm

    Examiner paycheck is directly tied to how much they produced (counts) along with quality check in place, SPE random reviews, and highly paid IP professionals to review the actions. 2% “waste” in this report appears to be “when and how” the work product was completed. Why it matters? We hire someone and agreed to pay certain amount with quality mind…. why care (or matter) how much time being spent on completing the product? Examiners are known to do VOT and there is no tracking of that?

  16. Anon September 1, 2016 8:24 pm

    temprand,

    I have yet to finish the report, but I believe that your “spin” here simply is not in accord with the findings (nor with the rules in place for what constitutes proper reporting of hours.

    While indeed “everything” has at least two sides, OFTEN several of those sides are simply wrong (under the law).

    Fraud remains fraud, no matter “which side” you want to see it from.

  17. Gene Quinn September 1, 2016 8:36 pm

    temprand-

    You say two things that are inconsistent and I don’t think you even noticed.

    First you say: “some can effectively do a task in 10 hours that takes examiner on the other end of the spectrum 20 hours.”

    Then you say: “Every examiner could double their output by reducing their quality.”

    You lament that examiners are not paid commensurate with the services they provide, but you admit that by spending more time quality is improved. In this business, whether you are a patent attorney or patent examiner, the more time you spend the better the work product, period. At some point you do reach a point of diminishing returns, but only in the most extraordinary of circumstances would spending 10 hours on a task where 20 hours has been allocated be appropriate.

    We all know (because examiners and former examiners alike all admit it) that patent examiners do not read the specification. It is impossible to sit and listen to anyone talk about examiners who are capable of doing their work in half the time when we all know that they don’t do everything that could (and should) be done in any single case reviewed.

    If we want to talk about quality I think examiners should be given more time to actually read the patent application they are supposed to be reviewing. But if examiners aren’t going to read the specification anyway and we are now being told that efficient examiners can easily do tasks in half the time allocated, that means the production goals need to be significantly revised and much, much more expected of patent examiners.

    -Gene

  18. N September 1, 2016 9:11 pm

    Gene you seem too willing to accept that it is acceptable that examiners don’t read the specification and so if they aren’t going to read it anyway then might as well crank out more (low quality) grants faster. Not sure if this is the best approach?

    The real challenge is meaningfully measuring quality in a timely manner. A proper measurement of quality with a rigorous and rapid mechanism to address failures in quality would distinguish those taking short cuts from those doing their job properly. But good luck finding the quality measuring stick…

    Separately how long does it take to properly examine an application? For an average examiner the time needed can vary dramatically depending on the application at hand. So you have to speak in terms of averages. Some arts can be easier to examine than others – or does it depend on the examiner, or both?Again averages have to come into play – so there will always be those above them who will be able to produce more. Do you disincentivize the good exceptions by giving them higher goals? Or just be happy that they produce more…

  19. Anon September 1, 2016 10:48 pm

    N,

    You made one rather major assumption: that all applications (somehow) must be treated like identical widgets.

    The easiest change would be to change the “widget” mentality. Create a new (and art-knowledgable) first review team that grades application difficulty along a spectrum and provide a matching spectrum of hours for examination.

    Now, the base allotment must still provide for a full examination, but the “one-sized widget” curse would at least be alleviated.

  20. Arya September 2, 2016 12:25 am

    Has anyone here actually read the report?
    If you read it, here’s a puzzle: how many hours did examiners actually work per week? After all, this is a study about whether people worked their hours or not, right? Well, that wasn’t measured at all! Well, if they don’t know how many hours examiners actually worked, how do they know how many hours are actually not worked? It is simple, they don’t know that either. Examiners work on a flexible schedule that allows them to work during nearly any time in the week. They fill their sheets every two weeks. As an example, for an examiner that worked eighty hours or more hours in two weeks, and had one workday off, but at the end of the two weeks they just recorded eight hours per day, this study concluded they did not work for eight hours or 10% of their hours. If you remember what you were doing Monday the 15th, then by all means please take their conclusions seriously. The only taxpayer money wasted was on the man hours to do a study that would not pass as one in junior high. So, why did they not measure the hours people actually worked? They had access to all the workstation data, that is clear in the report. What were they afraid to find? Putting hard numbers on the unpaid overtime and those bothersome GAO reports would be quite a problem, wouldn’t it?

  21. BestExaminerEVAH September 2, 2016 1:44 am

    “And just when things couldn’t get any worse for the Patent Office”

    From where I’m sitting Gene, you and your irrelevant crowd’s attempt to make this anything more than wishful thinking has been failing since circa 2010, heck, even before that. You kinda got some traction with that whole “Business methods should be disbanded because it’s too difficult for me” post but then people realized you were a goatee with a poorly produced blog and they moved on.

    Now you try to hitch your wagon to this steaming pile? ::Guffaw:: Not only is this report so laughably bad that even Stu Vareny on FNC Business won’t touch it, but it’s also labor day weekend. Your wagon is about to be swept up with the wave of irrelevancy this “report” is already spinning in. Just go to the beach and enjoy your impotency in this matter, it’ll be cathartic for you.

    “If we want to talk about quality I think examiners should be given more time to actually read the patent application they are supposed to be reviewing”

    Yeah, I routinely enjoy reading a specification which is nothing more than an applicant’s (probably more aptly the attorney) attempt to pass fiction and deception off as “novel and un-obviousness”. The day I see an honest spec is the day the patent office isn’t needed. Until then I’ll be putting your specs right next to this report – in the pile of papers we laugh at until we throw them into the recycle bin (always gotta take care of the planet).

  22. SandraBelltower September 2, 2016 9:31 am

    @19

    The problem with that though, Anon, is that you’ve forgotten to take into account your ilk.

    Say Inventor A submits 10 cases and they get graded 1 – the easiest. Inventor B submits 10 cases and they get graded 10 – the hardest. B’s cases get more time to examine which translates into longer pendency which translates into tears and temper tantrums from B.

    Then you have people like Gene who’d step in and write articles like “Patent Office treats applications differently and Inventors pay the price for the delays”, EVEN THOUGH that is exactly what he wants and what you want.

    What about patent term adjustment? Then you’d have Inventor A having tears and whines about how the PTO favors Inventor B and Gene would write a different article.

    See the problem? The PTO can’t make decisions that treat the applicants differently for the simple reason that it would, in actuality, cause more problems than the current system.

  23. Old Examiner September 2, 2016 10:20 am

    Gene:

    You made the following comment:

    “We all know (because examiners and former examiners alike all admit it) that patent examiners do not read the specification. It is impossible to sit and listen to anyone talk about examiners who are capable of doing their work in half the time when we all know that they don’t do everything that could (and should) be done in any single case reviewed.”

    I know some examiners don’t read the specification, but I have been doing this job for a long time and I have yet to examine an application without first reading a specification. Therefore, please don’t lump all examiners into a specific category.

    As to quality of examination, some examiners are just more capable than others. The same is true of attorneys.

  24. Anon September 2, 2016 11:09 am

    Old Examiner,

    You conflate the work of attorneys and the work of civil servants who operate under entirely different rules of the road.

    So while your statement may be true on its face, it is misleading in the given context here.

    Let’s NOT try to cloud the issue under discussion with attempts to shift the focus away from examiners and their actions UNDER the rules and system that the examiners operate in.

    Thanks.

  25. N September 2, 2016 11:42 am

    Anon, re: widgets – some sort of triage system could be interesting, but i don’t know that it is that easy to estimate examination time for a particular application (without basically examining it). Long description, many claims, many jndependent claims, agent/ no agent, subject matter, nature of response, stage of examination? Efficiency might not be the best either unless it was the examiner making the estimate. Lots more book-keeping and when an overrun occurs whose fault is it?

    Patent offices have to deal with such a variety of scenarios. From first time applicants with no experience to sophisticated experts, honest applicants, and manipulative applicants pushing the limits or trying to cram things through, the list goes on. And of course there are variations on the examination side – for example different levels of experience and expertise. Many variables.

    You can try to pin down and measure every variable and have all sorts of complex mechanisms to monitor and reinforce, or you can create a professional culture of trust, integrity, focussing on quality work in a reasonable time, on-going training, clear guidelines, and have reasonable checks and balances. And yes there will always be cheaters, but actions based on the fear of a few cheaters should not be used to determine the work environment for the vast majority who are professional and are just trying to put in a good days’ work.

  26. Anon September 2, 2016 12:27 pm

    N,

    You are making this far more complex than need be.

    Remember, we are not looking to build some perfect exacting prediction of time system, but rather, merely acknowledging that applications are NOT same size widgets.

    “Missing” is still the “fault” of the examiner, and to combat (evident) gamesmanship, the examiner would most definitely NOT have anything whatsoever to do with evaluating where on the spectrum any particular application may land. And neither would any SPE. This would be done by a new group of those most knowledgeable in the pertinent art field, thus gaining the “traction” that you would want to have coming out of the gate.

    Your second paragraph only emphasizes the need for something like my suggestion. Clearly, given the amount of variables that you yourself present, any type of “one-sized-widget” id decidedly incongruent with any sense of fair examination.

    With regards to your last paragraph, clearly there needs to be some administrative balance (some BETTER administrative balance), and we do NOT need to try to put in place some far too complicated exacting apparatus. Generalized buckets would be a far better – and easily implemented – step.

    And with regards to the system “not taking into account any cheaters,” sorry, but that is just not reality – ANYWHERE.

    You must have system safeguards, and especially in a civil service type environment. Any other view is just unrealistically polly anna.

  27. N September 2, 2016 1:09 pm

    Anon, adding a new group would just add a new variable to the mix. And i am not sure where you would find the experts for this group. Also i am not sure how an art expert could determine examination time.

    Re: pollyanna – Of course have reasonable checks and measures (although not sure why you say ‘especially in a civil service type environment’). But don’t use extremes to determine the rules for everyone. This is not a life and death situation. Basically, create a structure which promotes what you want (quality examination in a timely manner), not one which focusses on preventing what you don’t want. In either case there will be some losses, but at least in the first case you might get more of what is desired (and you might be surprised when it works better than you expect, …says pollyanna 🙂

  28. Anon September 2, 2016 3:25 pm

    N,

    You still are seeking to make the change more complicated than need be – while not recognizing a very real difference that naturally inures because a civil service role is included (you do not have any true natural market forces at play).

    I am sure that I could explain this all to you over a couple of beers, but the back and forth on a blog is just not the best way for you to learn these types of business aspects.

  29. N September 2, 2016 4:06 pm

    Anon, fair enough, i shall have to seek further edification elsewhere.

    Separately, it is interesting that the patent office has a perpetual monopoly on granting monopolies and is a case study in the problems with monopolies…

    Cheers!

  30. Old Examiner September 2, 2016 4:34 pm

    There have always been examiners who attempted to cheat the system. I remember when an examiner was caught putting paper files for difficult cases in the ceiling at the Office so he wouldn’t have to work on them. That’s life. Don’t put the vast majority of examiners in that category.

    As for how much time is needed for cases, good luck in trying to figure that out. When I reclassified the area I work in 30 years ago, I created 52 subclasses. The most patents in any one sub was around 100. Now those same subs have 1000s, one with 10,000. Although, reclassification was done, it was never implemented since we were going to CPC. CPC is even worse with one comparable subclass having 25,000 references. Word searches are great, but they always leave 1000s of references to peruse. Examiners can never learn the art like we were able to do in the old days and trying to figure out appropriate time for examining a case is near impossible.

  31. Anon September 2, 2016 5:56 pm

    Old Examiner – you are stuck being old and locked in your old ways.

    I would daresay that is a bug and not a feature.

    You further make it sound as if all “old patents” that you may have processed are infirm because you (purposefully) limited what your scope of prior art was that you reviewed. That too is not a compelling story that suits the discussion here.

  32. Gene Quinn September 2, 2016 6:28 pm

    BestExaminerEVAH-

    Thanks for the laugh.

    First, God help us if idiots like you are actually examiners.

    Second, with nearly a quarter of a million readers a month this poorly produced blog, as you allege, is doing fine. Thanks for visiting!

    Third, Senators Grassley and Leahy have already made an official inquiry for answers, so we will see who has the last laugh.

    Lastly, if you want to continue to comment you will either need to use a real name or real e-mail address. I won’t rescue your blithering garbage out of the spam folder a second time.

    -Gene

  33. Prizzi's Glory September 2, 2016 7:42 pm

    It might be possible to create an automatic system to do a degree of analysis and of estimation before a human even looks at the application.

  34. Arya September 2, 2016 8:40 pm

    Sorry, my previous post is incoherent and a bit rough. Do as you will with it. Just the facts from the report:

    -“However, the analysis does not determine the maximum number of hours the employees actually worked”
    -“Thus, the analysis capped the daily hours worked at the amount of daily hours claimed by the examiner. ”

    In other words, the report did not measure how many hours examiners actually worked per pay period. The study concludes that two percent of hours were not worked without determining how many hours were actually worked.

    A simple example of what that means:
    X worked 88 hours in two weeks, but didn’t work on a Friday. X records the time as Monday-Friday, eight hours a day for both weeks. The conclusion that this study would reach is that X worked 72 hours for the pay period (see above, daily hours capped at the hours claimed), and thus X must have skipped 10% of the hours paid for, when in fact X worked 10% unpaid overtime. The study would miss 16 hours of work, that simply.

    What this report did is find a 2% error on whether the correct time was attributed to the correct day and the correct box on a biweekly sheet filled by people that work on a very flexible schedule once every two weeks.

    If examiners individually or in total worked 1, 2, 3, or 30% of unpaid overtime, or if they worked their hours on a different day than the one they recorded, the study would only and could only find deficits, by design.

  35. Anon September 2, 2016 8:56 pm

    You are missing the point about the report basing on the numbers reported.

    This report does far more than your post indicates.

    Your post is rife with errors – and that’s not so good when all you are doing is claiming errors in the report.

    I am curious though exactly why so many examiners are getting so excited about this matter. Could it be that this is merely the tip of one ginormous iceberg?

    What else will we find if we put some more sunlight into the Office?

  36. Old Examiner September 2, 2016 9:13 pm

    Anon, I didn’t purposely limit my art. I simply broke it down to make it easier to search specific areas and lieu of lumping art together which is what is occurring now. Currently, it is virtually impossible for young examiners to master their art areas, and you simply can’t honestly address it without questioning the competency of my work. When one never loses a case at the board in 40 years, he must be doing something right.

  37. An Examiner September 2, 2016 11:11 pm

    @Anon
    Examiners are “getting so excited” because this is now the 3rd trumped up report from the OIG’s office. The OIG’s office is pumping out these highly suspect numbers (the dollar amounts are almost assuredly inflated) without actually calculating the number of hours worked. They’ve excluded all “voluntary” unpaid overtime worked from their report. It’s also fairly clear that the authors of the report have never come to the office and sat with an examiner to see exactly what examining entails.

    My “favorite” was the last report about “Examiner A”, where the Washington Post, this blog, and other misreported it as telework abuse. The famous “Examiner A” was not a teleworker, and the real failure was the managerial failure of the SPE to properly supervise.

    This report wasn’t peppered with anecdotes like the previous one, but is just as nauseating. It’s clear the OIG report authors were biased and started with a conclusion, then found data to support the foregone conclusion. They made no attempt to calculate all the voluntary unpaid overtime that examiners work. In fact they made no attempt to actually calculate the total number of hours worked. Furthermore, there is no attempt at explaining how the monetary figures in the report were calculated, and anyone familiar with the USPTO pay table would regard them as highly suspect.

    Now, imagine being an examiner like myself that often is required to work voluntary overtime, weekends, etc., in order to produce quality office actions in the short amount of time actually allotted. I’m a professional, and yet every time one of these “reports” comes out we get peppered with insulting questions and comments from people about how we’re lazy government employees stealing taxpayer money. It grades on your nerves. So yes, examiners are “getting so excited about this matter” because people get excited when you question their professional integrity.

  38. Anon September 3, 2016 7:25 am

    An Examiner,

    Except that this is not “trumped up.”

    You are mixing up two very different sets of actors in your attempts to minimize the high end fraud that is clearly in place. There is plenty of “bias” evident here, but it is your bias and your emoting that is what I see.

  39. Anon September 3, 2016 7:40 am

    Old Examiner,

    My apologies then for misreading your comments, as they appear to solely indicate less prior art reviewed, as opposed to the same quantity of prior art reviewed, but merely reviewed in some “better organized” manner. As I re-read your posts, I still see this emphasis on quantity though – perhaps you can clarify this.

  40. Jeffers Davis September 3, 2016 10:28 am

    Has anyone looked into the methodology of the report? For instance, did the OIG calculate the number of voluntary overtime put in by examiners to achieve production and/or accrue bonuses? At first blush, the metrics used by the report are silent with respect to such time. If in fact, such voluntary time was not reported, yet readily available from the electronic footprint, the question becomes one of motive, given that such time, in toto, could far, far exceeded the alleged “unsubstantiated” time. Imagine if the OIG had reported after 15 months, that there was essentially nothing to report. The vast sums of money and time spent to arrive at a null result would not look good for the OIG. Moreover, should we not wait for an explanation by the Office/POPA as to their side, after perusing the report, or are trials held where only one-side can present evidence? Based upon my limited understanding of the report, I can readily raise legitimate questions as to such methodologies used by the OIG to arrive at what many feel was a preordained result. Are there “bad apples”? I am sure there are, as there are in every human endeavor and profession. For those of you that have backgrounds in mathematical statistics and sociology, you know of what I speak.

  41. Old Examiner September 3, 2016 12:48 pm

    Anon,

    I was just trying to emphasize the fact that it is mere guesswork in attempting to come up with an accurate number for examination time necessary for reviewing a case since the searches have exponentially increased. First, the Office stopped reclassifying, then the CPC just compounded it at least in my search areas.

    Let me make one other comment re the IG report. I know some examiners abuse the time. They have in the past, and they will in future. I also know that many teleworkers are working nights and weekends to make their goals. It is easy to see when examiners are signed in with Microsoft Lync. I’m always getting asked for help during such times since I also seem to put in more time than ever. So as far as I am concerned, the IG report is merely an attention-grabbing headline since the vast majority of examiners are attempting to do their job.

  42. Proud to be a USPTO patent examiner September 3, 2016 1:57 pm

    Gene, I love reading your blog! It gives me a perspective into intellectual property as a whole, particularly from the applicants’ perspective. I find it quite insulting, however, for you to paint such a negative broad brush onto the examining corps. “[S]o will see who has the last laugh”? Really? I genuinely look forward to any forthcoming hearings and inquiries that will undoubtedly come from the report. Hopefully the OIG methodology can be further scrutinized so as to ascertain the true scope of any “cheating.” Do I feel the Office can improve? Without a doubt! How about biometric fingerprint readers to sign-in and sign-out each working day at the PTO laptop, even for those hours worked on voluntary OT. One of my personal pet-peeves is end-loading, which IMO, does lead to inferior quality patents. There has to be a way POPA and management can mitigate its extent. And like was previously mentioned in another poster’s comment, when I work my voluntary OT (typically around 10 hours a week) to max out on my bonuses, I often chit-chat on the phone, e-mail and instant message on the PTO Microsoft Lync on my OFF HOURS, getting other’s viewpoints on patent-related topics. During such off-hours, I often note there are many, many other Examiners working late at night or on weekends – it is relatively easy to see who is working (i.e., at least doing something with their keyboard) via the presence indicator on Microsoft Lync (green dot if there has been keyboard activity with 15 minutes, otherwise it automatically switches to yellow dot). So, you see, there are many, many hard-working professionals at the PTO, and I am proud to be an employee of such an outstanding organization!

  43. Anon September 3, 2016 2:09 pm

    Old Examiner,

    So in fact what you are saying is that I was correct in my first post concerning your views tied to quantity of references as opposed to organization of references.

    And thus, your first reply to my comment was only misdirection.

    As to your second paragraph (and to the comment from Mr. Davis), once again we have examiners trying to conflate two very different pools of people each doing inaccurate reporting for different reasons. Try to keep in mind, my examiner friends that fraud is still fraud, and there is no excuse for inaccurate reporting. Each of the two different reasons has its own deleterious effects.

    Think of a normal distribution curve, with the two sets of actors operating on either tail of the distribution curve. Those acting on the lower curve are artificially skewing the distribution with their unreported hours. This will also tend to mask the poor quality (albeit, probably not on any one to one basis). The immediate effect though is that ANY Office metric for “how long it takes” is going to be wrong. The better path is to take your lumps and report accurately. If in fact, the Office metrics are off, then your union should protect you and seek better estimates. But those better estimates will never happen as long as time is (purposefully) erroneously reported.

    On the other end of the distribution curve, you have outright fraud with unworked hours being reported in order to grab more pay. It must be kept in mind that there is NO “evening out” with the other actors and that this set of actors are actively stealing money from the Office (and by proxy, stealing money from innovators, whose fees are what entirely fund the Office).

    There is NO – and can be NO – excuse for this type of behavior. It is simply wrong and it is criminal.

    The lengths that I have seen examiners try to “justify” these actions speaks of a culture of corruption. Yes, Old Examiner, you yourself may not be guilty of the actions indicated, but make no mistake (you even admit as such) there are those that are committing fraud on the government. Any such lackadaisical attitude that such is not a serious offense is PART of the problem.

  44. Jeffers Davis September 3, 2016 2:32 pm

    Anon, do you feel there is no corruption in any other profession? Wall Street? Politicians? Patent attorneys (e.g., over-billing hours)?, etc., etc, etc. To be sure, corruption should be rooted out to the maximum extent feasibly POSSIBLE. Assuming arguendo, that the alleged two percent of unsubstantiated time pertaining to the OIG report has merit, how do you think two percent “corruption” would stack-up against the aforementioned professions, et al? Sorry, the PTO does not have a limited monopoly (patent) on marginal “corruption.”

  45. Anon September 3, 2016 2:43 pm

    Mr. Dacvis,

    This report is specific to a certain corruption.

    Your question about corruption elsewhere is not material to the present discussion. To the extent that you appear to want to deflect with some sort of “well, other people do it,” that type of deflection is expressly rejected.

    As to the “2%” number, it has already been remarked that trying to average out the corruption over the entire examining corp is a logical fallacy – another type of deflection.

    The direct and reprehensible fraud is due to a much, much, much smaller group.

    Please observe the actual facts presented and amend your position accordingly.

  46. Jeffers Davis September 3, 2016 2:58 pm

    Oh, lest I forget another profession…journalism. Feast your eyes on this http://www.washingtoncitypaper.com/news/city-desk/blog/13070349/post-reporter-lifts-passages-from-government-executive-articles Note the author of the Washington Post articles pertaining to the alleged PTO abuses and the author referenced in the link. Welp then…

  47. David Stein September 3, 2016 3:01 pm

    I appreciate the OIG report and the article, Gene.

    However, I think that the focus of the report is backwards, and that the recommendations may be detrimental to the PTO’s mission and applicants’ interests.

    Which examiner would you prefer, either as an applicant or as a SPE:

    Examiner A issues 50 office actions per month, where such office actions have (a) an average of 4.9 office actions per case; (b) RCEs in 75% of final office actions; and (c) an appeal rate of 20%, of which 70% get resolved in the applicant’s favor.

    Examiner B issues 40 office actions per month, where such office actions have (a) an average of 2.9 office actions per case; (b) RCEs in 55% of final office actions; and (c) an appeal rate of 9%, of which 20% get resolved in the applicant’s favor.

    Now, ask this: Would it make any difference if examiner A put in a reliable and measurable 35 hours per week (as measurable by a “digital footprint”), while examiner B put in a reliable and measurable 28 hours per week?

    Examiner B may spend time reading the specification, or reviewing a textbook to refresh about the subject matter, or talking to another examiner to find relevant prior art. Examiner B may spend more time reading case law and office action memoranda to understand the current state of the law. Examiner B may take more frequent breaks to let her brain rest and reset between cases.

    Meanwhile, Examiner A focuses on quantity, because that’s the fastest way to making primary and getting that cushy telework status.

    Tracking examiners’ usage of time is babysitting. It’s like parents hovering over their kids and making sure they’re flipping the pages of their textbooks and making marks on paper. Examiners should be treated like adults – and evaluated like adults: graded on their work product, regardless of how they got there.

    For instances:

    * Take all of the examiner’s cases and divide them into three categories: (a) Cases with rejections that are found to be in error (SPE intervention, P3, pre-appeal review, actual appeal, or OPQA finding of error); (b) Allowances that are found to be in error (rejected upon review, or IPR); and (c) All other cases that reach a final disposition.

    * Rate examiners by their proportion of (c), correct decisions, to (a) + (b), incorrect decisions.

    * Normalize the expected proportion across the art unit or tech center and examiner status (primaries compared with primaries; juniors compared with juniors). This normalization accounts for cultural differences in clients and tech fields, and compares examiners with their peers’ averages. High ratio = bonus; low ratio = supervision and corrective action. This also ditches the “95% of examiners are above average” garbage revealed in this OIG report as well as last year’s report.

    * Scale ratings and compensation based on the quantity of (c), which of course reflects how quickly they reach a correct final disposition.

    This process centrally measures quality while also requiring and rewarding quantity.

    Notice what’s missing from this evaluation? The *amount of time* that the examiner spends on examining, according to some “digital footprint” tracking.

    Examiners who produce good work product, and a significant volume of it, are advancing the PTO’s mission. Those who don’t, aren’t. It really is that simple.

  48. Gene Quinn September 3, 2016 3:05 pm

    Proud to be a USPTO patent examiner-

    You think my response was insulting? Really? Not exactly sure what to make of that. Did you actually read the gratuitous insults leveled against me by BestExaminerEVAH? Apparently not.

    Did you actually read this article? It is hard to believe you did read the article when you see to lecture me that there are many hard-working professionals at the PTO. This article unambiguously says that very same thing, as does every article I ever write that criticizes the unacceptable and unprofessional abuses of power we see from some patent examiners.

    Having said that, we all know that there are many hundreds of patent examiners that abuse their power, issue bogus rejections, have complete disdain for applicants and patent attorneys, and now we know that there are hundreds of patent examiners that seem to be committing financial fraud on the Patent Office. This is unacceptable and good examiners, like yourself, shouldn’t circle the wagons to protect the miscreants among the examiner ranks.

    I am calling balls and strikes. If you don’t like my comment about who will have the last laugh I’m sorry. Given the gratuitous insults and condescending comments from BestExaminerEVAH my supposition is he/she is a part of the problem, not the solution. Unless and until the Patent Office gets rid of examiners like that no progress will be made and the work of the many thousands of serious professionals will be needlessly called into question.

    -Gene

  49. Arya September 3, 2016 5:36 pm

    No need to take posts personally, or seriously for that matter. No one here has a beef with anyone else or any group of people, and no one here wrote the report, right?

    Someone said something about errors, it’s very likely, I do not claim to be infallible. I mentioned what I believe to be true based on the facts stated in the methods. All corrections are welcome. Though, I do not believe that there is any conflating above. Or mixing of groups, good and bad apples, or other culinary arts and magic tricks. There is only a historic moment here and it deserves our undivided attention. A breakthrough in science and mathematics. For the first time, man has been able to determine total error, while ignoring positive error, and without measuring actual values. On an individual basis for a population and with daily accuracy, mind you. No mixing of groups. Not talking about adding the positives of one with the negatives of another. The method was the same for all, it did not discriminate. It didn’t find positive error or actual values for anyone, on any time frame. We are left without a clue for anyone in the study, the “good” or the “bad” .

    But, on a daily basis, for every single subject, any potential negative error from the exact value written down for that particular day, not the pay period as a total, was accurately guesstimated down to the second. Actual values were immaterial, positive errors were not even needed, for any time frame. That was the ingenious part, after all.
    All are shocked that this feat resulted only in total negative errors. No one can believe it. The scientific community expected positive values, but they were content that the negative errors were only found to be statistically significant in 2% of the subjects. Oh wait, no statistical significance was shown for that either. The goal was achieved, and the method was coined “pessimostatistics”, as it can only lead to negative values no matter what.

    However, the problem is that because this truly incredible technique (no one can believe it yet) has not been verified yet by independent scientists, these results are not facts. Mistaking them as facts, could lead to the wrong conclusions. Wrong conclusions lead to accusing someone or a group of people of criminal activity such as fraud and corruption, with a lackadaisical attitude, and if it is done based on these truly novel, certainly not obvious, but yet untested methods, it could be mistaken as, you know, that thing when you are trying to damage someone’s reputation, be it a group or individual, without fact. Y’all enjoy labor day weekend! Be respectful to those working during the time meant for celebrating the American working people, their struggles and their achievements, whether they remember to record their hours on the correct day or not, and then get back on it. Can’t wait for the next wave.

  50. Jeffers Davis September 3, 2016 8:23 pm

    Anon, you missed my point completely. Moreover, please see the obvious flaws in the OIG methodology, in particular, as so eloquently articulated by Ayra. The point I was attempting to make is, assuming arguendo that OIG report is taken as gospel, what then to make of a 2 percent “unsubstantiated” time (which we will assume for simplicity is blatant fraud, or in the words of some journalist(s) “hooky”). Is it relatively low, high? Could each and every instance of this “fraud” (again, assuming it exists in this instance) be eventually weeded out? Sure. Just hire observers to watch over the shoulders of every working examiner. Problem is, the cost to pay those observers would far exceed, for a lack of better words, the “bang for your buck.” The same could be said of fraud perpetrated by Wall Street bankers, politicians, corrupt attorneys, journalists alleged to have plagiarized, social security fraud, tax fraud, Medicare and Medicaid fraud…the list goes on and on. For all practical purposes, it should be minimized to the maximum extent as is (economically) feasible. One in theory could eliminate all fraud, however the the cost of doing so would not remotely make any kind of economic sense in most situations. Having said that, what would be your solution, such that every second of every working day of a patent examiner is monitored such that an examiner’s time sheet correlates 100 percent (as opposed to 98 percent) of non-voluntary worked hours, to time-codes therein, a zero-error rate, i.e., 100 percent accuracy, at a cost-effective scale?

  51. Anon September 3, 2016 8:47 pm

    Mr. Davis,

    Ayra is hardly “eloquently articulated” – more like a mess of inaccurate subjective ramblings rather un-associated with anything in the actual report.

    Further, you continue to try to peddle the “2%” number as if that number had any actual meaning other than a thinly veiled attempt to shield a certain small group of – yes – criminal behavior.

    You also continue to attempt some odd “but fraud is perpetrated in other areas, so what?” type of completely unacceptable “justification.”

    The law is not so “economically driven,” now is it?

    And even requiring more (some) critical thought, should it be? That path lie the way to “buying your way out of” offenses.

    No thanks.

    As for my solution – asked and answered – and no, there is absolutely no need for any exacting micro-second type of approach.

    Just report your time accurately – be it at the bottom of the distribution curve or at the top.

  52. Old Examiner September 4, 2016 11:40 am

    Anon

    Misdirection in what manner? I’m only stating the CPC in my art area isn’t as well thought out as what we had previously. Therefore, examiners have to search 1000s of references which aren’t applicable. I don’t see your point if there is one.

    Secondly, examiners who work voluntary OT without recompense aren’t incorrectly entering their time sheets. They are merely conscientious about doing a good job. Their time reporting for what they are being paid is accurate. As I also stated, I’m sure a few examiners may be not accurately reporting, but that is merely a fact of life, not a scenario for some attention-getting headline.

  53. Anon September 4, 2016 2:23 pm

    Old Examiner,

    Read again the comments regarding quantity versus organization.

    As to those on the lower tail of the normal distribution, ALL hours should be reported, even if “voluntary.” Elsewise the amount of hours “it takes” is skewed.

    As to those on the upper tail (or cheating to get into the upper tail), such is not merely “a fact of life” – and the implied tacit “oh well” is simply not acceptable for such criminal behavior.

    You seek TOO MUCH to “pooh-pooh” the issue here. We are talking about a relatively small few engaged in multi-million dollar theft. And all you want to do is shut your eyes.

    Why?

  54. Old Examiner September 4, 2016 2:45 pm

    I don’t want to shut my eyes. Simply let the IG notify the Office and allow the Office to go after the examiners involved. The attention-grabbing headline appears to make this issue one associated with a plurality of examiners which it is not and gives all examiners a bad rap.

  55. Gene Quinn September 4, 2016 4:07 pm

    Old Examiner-

    I disagree that the headline makes it seem that a plurality of examiners defrauded the government. The headline uses the plural because it would appear that there are many hundreds of examiners involved.

    As for giving all examiners a bad rap… I’m going to soon write an article calling out the good examiners. You are 100% correct. There are some examiners, many hundreds of examiners actually, who are giving the over 8,000 patent examiners a VERY bad rap. Unless and until good examiners who care are willing to stand up and come forward and actually tell what they see, what they are being forced to do by SPEs, QAS and Group Directors nothing is going to change.

    If not the problem, at some point good examiners who say nothing allow themselves to be given a bad rap and the system that they serve to suffer immeasurable harm.

    -Gene

  56. Gene Quinn September 4, 2016 4:16 pm

    Jeffers Davis (and others)-

    I understand that you are making a lot about the fact that 2% of the time was unsubstantiated. That is a fair point. I wish, however, you’d be equally concerned with the fact that 415 examiners accounted for 43% of the unsubstantiated time. That is not a small number and suggests that there are many hundreds of examiners who are a problem.

    Is it fair that those who are engaging in this financial fraud are giving a bad name to all patent examiners? No. It is also not fair that those patent examiners that always issue frivolous, bogus rejections give all patent examiners a bad name. It is unfortunate that good examiners are not willing to stand up and point out the abuses they see. Rather they roll with the system as it is and then get very upset when a light is placed on the abuses and people start talking about the problems as if all examiners deserve to be treated with suspicion.

    Finally, I’d also point out to you and others who want to defend examiners and jump to the conclusion that this report is bogus, some of the patent examiners who have been commenting here in this thread have practically admitted to committing fraud. They say they are justified to book 3 hours, for example, when that is what is allocated and they actually only spent 2 hours doing the job. That is fraud, and if an attorney did that they would at an absolute minimum be suspended from practice and more likely disbarred. That type of billing practice has lead to attorneys being disbarred in the past. So if that is what is going on the problem is very serious. That this would allow some examiners to work less hours, do inferior work and then still get overtime while working less than 40 hours a week is unacceptable. If more good examiners saw it that way there would be a real chance to get the miscreants pushed out of the way.

    -Gene

  57. Anon September 4, 2016 4:50 pm

    Old Examiner @ 54,

    This is NOT the first time around the block with this topic.

    Back in 2014 a similar Office internal report was run with very similar results. The Office itself deleted the harshest elements of that report prior to sending up in the Commerce department.

    There IS a plurality of examiners involved. And it is only those seeking to minimize the “damage” and seek to have that plurality “averaged out” with either the leading tail of the normal distribution or with the entire corp that actually bring disdain on the entire corp.

    That and those for whatever reason simply cannot seem to abide by the plain fact that there is criminal fraud afoot in the examiner corp.

    As I have said a couple of times now, it is most odd that SO many examiners are trying to minimiize the facts here – that ONLY wants me to bring MORE attention to the Office.

    You have “stakeholder” meetings held behind closed doors with no published minutes. You have SAWS (and still have SAWS-like programs running in the shadows, and you have a serious problem with fraud in the Office. It is high time that MORE (not less) sunshine be brought in.

    Your suggestion then of “I don’t want to shut my eyes. Simply let the IG notify the Office and allow the Office to go after the examiners involved. ” is simply NOT warranted.

  58. Mark September 4, 2016 5:43 pm

    “and actually tell what they see, what they are being forced to do by SPEs, QAS and Group Directors”

    Gene, you have to be kidding right? Tell who…you? And then what? You MIGHT write an article citing to the examiner and then what do you think happens to the examiner? That’s a rhetorical question, I’ll tell you what happens – the all of a sudden start getting quality errors, being forced to reopen prosecution driving down their DM score as well until they get fired.

    I can hear Anon going “well, if the work is good”….please, stop it. You know as well as I do that there are always multiple ways to reject something, or ways to allege improper allowance. All of which hits the examiner FIRST before the union (which you all love to malign) is able to defend the examiner against the specious charges.

    So please, spare me the “well Snowdon shoulda registered complaints within his chain of command” line of argument, we all know that you’re asking people to accept being fired to vindicate your point. Thanks, but I’ll take a crazy ramblings of you and Rein over the very real adverse actions of the office any day of the week.

  59. Old Examiner September 5, 2016 1:22 am

    Anon,

    No one is trying to minimize the fact that some examiners are probably committing fraud, but it is management’s responsibility to address it.

    Also, there is no place to report voluntary hours worked on our time sheets. Should examiners only work the required 80 hours a pay period even if they are unable to meet their goals? That would result in an unfavorable rating and possible termination. Setting of goals is an inexact science, and the new CPC classification system hasn’t exactly been taken into account in the setting. Attorneys put in time that they don’t bill for so why shouldn’t conscientious examiners. It is easy to come down on examiners doing something wrong, but where are the platitudes for examiners going beyond their requirements?

  60. Anon September 5, 2016 7:54 am

    Attorneys put in time that they don’t bill for so why shouldn’t conscientious examiners.

    Where did you hear that from?

    It is easy to come down on examiners doing something wrong, but where are the platitudes for examiners going beyond their requirements?

    You are not listening. There is NO “deserved platitudes” for NOT accurately reporting one’s hours – on either side of the normal distribution curve (or anywhere, really).

    Read again what I have written, please.

  61. Easwaran September 5, 2016 10:15 am

    David Stein, great post, and thanks for injecting a realistic and substantive suggestion into the mix. It unfortunately does say something that the subsequent 12 posts all ignored your comments.

    For that matter, I enjoyed reading the similar thoughts you posted on your blog last year. You shouldn’t have stopped posting there!

  62. David Stein September 5, 2016 10:29 am

    @Easwaran: Thank you! I recognize that my comments were inserted into several continuing discussions, so maybe it was a little late to the party.

    (Blogging is on hiatus because… well, because my wife and I had our first child, and we’re still figuring out the pieces of this new life! I have a very strong desire to pick it up again, but just need to find room for it. I’m sure it will happen some day, hopefully sooner rather than later. I really appreciate the support.)

  63. Gene Quinn September 5, 2016 11:27 am

    Mark-

    Kidding? Absolutely not. Have you ever heard of whistleblowers or whistleblower protections? It might be a rhetorical question to you because you clearly don’t understand, and if you are an examiner you don’t take your job and obligations seriously.

    At some point in time if good examiners don’t stand up and do the right thing they are as much a part of the problem as the miscreants at the Office, period. That you don’t like that truth doesn’t change it.

    God help us if you are an examiner. We don’t need examiners collecting pay checks while turning a blind eye to the job responsibilities they are supposed to have. Examiners serve the public, not rogue supervisors. And if you don’t like being lumped together with those who are committing financial fraud on the Patent Office then you need to stand up and show some backbone. Otherwise don’t come complaining to me when the stakeholders, Congress and the public think all examiners are abusing their power and engaging in systemic fraud.

    Time to grow up!

    -Gene

  64. Gene Quinn September 5, 2016 11:37 am

    David Stein-

    You ask: “Would it make any difference if examiner A put in a reliable and measurable 35 hours per week (as measurable by a “digital footprint”), while examiner B put in a reliable and measurable 28 hours per week?”

    ANSWER: If examiners are working and just not getting credit by the IG because there is no digital footprint that is a problem with the report no doubt. That is why the recommendation that all examiners be required to log into the system whether they are working online or offline makes perfect sense and is extremely easy to implement. That could happen tomorrow and much of the question about whether these examiners were working and just not showing up in a digital footprint would go away. There are plenty of technologies that exist to ensure that someone working from home is at their home workstation throughout the day while they are logged in and not out playing golf like the infamous Examiner A, who bilked the UPSTO out of 730 hours. The fact that the USPTO has an extensive work from home program and no way to verify whether examiners are actually working while at home is appalling. There should be a digital footprint of some kind and those who are getting credit for work at home hours need to be in communication with the Office so that their work can be verified. That examiners cannot be treated like professionals is the creation of Examiner A, the Office that didn’t know Examiner A was bilking them for 730 hours, and many examiners of the kind who have commented here on this thread.

    The big problem the Office has is that it seems that patent examiners are clearly committing fraud based on what they are admitting publicly. Just look at this thread here for example. Examiners are excusing the fact that they book 3 hours when they work only 2 hours because they were allocated 3 hours for the task and they are just so efficient so why shouldn’t they be able to book an extra hour the Office was willing to give them? This is fraud, period. If an attorney billed that way they would be disbarred and some have been disbarred for billing that way. If you work 2 hours you book 2 hours, not 3. It is a simple concept understood throughout all industries.

    You say: “Tracking examiners’ usage of time is babysitting.”

    ANSWER: Unfortunately, yes. It seems many examiners need babysitting. There are real abuses of power at the office. Not just associated with financial fraud and overtime abuse, but with respect to bogus rejections and hatred toward patents and applicants. Unless and until the Office gets rid of these miscreant examiners ALL examiners will need to be treated as the problem and monitored. It is unfortunate that good examiners don’t stand up and come forward, but they seem uninterested in doing so.

    -Gene

  65. Gene Quinn September 5, 2016 11:54 am

    Easwaran-

    I’m sorry that you think not responding to David’s comment quickly enough says “something.” Do you suppose that it might be because David’s comment was left at 3pm on a Saturday of a holiday weekend?

    I realize that others have commented and continued conversations already in progress, but I’m not sure how you can read anything into silence during the holiday weekend that will close out the summer. Frankly, I’m surprised we’ve had as many comments as we have over this holiday weekend.

    -Gene

  66. Old Examiner September 5, 2016 12:21 pm

    Theoretically, Mr. Stein’s evaluation sounds great, but it is impossible to take all of every examiner’s cases and review them. Spes are already overburdened reviewing cases biweekly. Further, most spes aren’t even fully knowledgeable of their art areas in light of the rapid expansion of the Office to know if an examiner has the best art. They are required to review random cases only as far as I am aware. I”ll give you 2 examples. One examiner I know just refuses to allow anything. He works long hours. Even after he loses repeatedly at the Board, he will resume prosecution with new rejections if possible. Another examiner just issues everything on 1st action and sits around doing nothing but he is on the clock. Unfortunately, they are primaries and just plod along amd make through any reviews.

  67. David Stein September 5, 2016 1:53 pm

    Gene:

    > That is why the recommendation that all examiners be required to log into the system whether they are working online or offline makes perfect sense and is extremely easy to implement.

    I don’t have a problem with examiners being tracked – but I believe that this information should be used only if the examiners’ performance metrics indicate a significant quality problem:

    * An examiner with poor outcome metrics, who has not established a “digital footprint” to demonstrate sufficient time use, can be admonished to exert more time and effort on cases.

    * An examiner with poor outcome metrics who *does* have a sufficient “digital footprint” clearly has other issues: poor technical proficiency, a misunderstanding of the law of patent examination, or attitude problems (obstructionist or obstinacy = high rate of reversed rejections; overpermissiveness = high rate of reversed allowances).

    * An examiner whose outcome metrics are good should not have their “digital footprint” examined *at all*. Don’t fix what isn’t broken!

    > …like the infamous Examiner A, who bilked the UPSTO out of 730 hours.

    Okay, but is the problem there that Examiner A is logging hours that he/she didn’t work.. or the model of incentivizing and rewarding *time* and *output*, largely irrespective of quality and outcomes?

    I believe that it’s the latter – and the strength of that feeling grows stronger with every reported new instance.

    There is a well-known axiom within the field of data-driven management that goes: “You get what you measure.” The USPTO should not be a factory of examiner-hours or office actions. (Wasn’t “churn” one of the most grievous problems of the Dudas administration?) First and foremost, it should be a factory of good examination outcomes: allowances and rejections that withstand scrutiny at every level of review. And not by making the system more examiner-deferential, as per Alice and KSR – but by pushing (and enabling) examiners to reach more compelling and well-articulated decisions.

    > The big problem the Office has is that it seems that patent examiners are clearly committing fraud based on what they are admitting publicly.

    See, I’d describe this incident as: unethical examiners taking advantage of the poorly-targeted compensation system of the USPTO.

    I don’t care that an examiner is golfing during work hours: I care that (a) the examiner’s golf habit distracts him/her from putting sufficient time into reaching good examination outcomes; and (b) the examiner’s golf habit is causing applications to be delayed and throttling the examiner’s production of those good-quality outcomes.

    Reorienting the system to reward good outcomes solves all of this.

    > There are real abuses of power at the office. Not just associated with financial fraud and overtime abuse, but with respect to bogus rejections and hatred toward patents and applicants.

    Ah, I agree! I am heavily using both the P3 program and the appeal process to force the reversal of *objectively* bad rejections.

    But you see where I’m going with this. If a rejection is bad, I absolutely do not care whether the examiner’s “digital footprint” for the case is 20 minutes or 20 hours. *Why* it’s so bad is the USPTO’s problem to determine and address.

  68. David Stein September 5, 2016 2:12 pm

    > It is impossible to take all of every examiner’s cases and review them.

    Quite true. But you can do two things:

    1) Invest into heavily spot-checking office actions. The OPQA is already doing this, and is scaling up its efforts – but as last year’s OIG report revealed, there is a weird disconnect: the OPQA’s findings do not affect examiners’ performance review. That seems very inefficient to me.

    2) Collect metrics based on outcomes: how applicants, P3 / pre-appeal conference / PTAB respond. Good office actions more often prompt significant amendments, abandonments, and affirmances; bad office actions more often prompt RCEs, no-amendment replies, appeals, and reversals. These metrics can be automatically collected, aggregated, and incorporated into performance reviews, without even looking at the substance of the case.

    > Theoretically, Mr. Stein’s evaluation sounds great, but it is impossible to take all of every examiner’s cases and review them. Spes are already overburdened reviewing cases biweekly.

    “Overburdened?” I think that’s the best use of their time!

    A SPE’s primary job should be: promote the outcome metrics of the art unit. Do everything possible to assist examiners in reaching correct decisions efficiently. Give them an actual, direct incentive to ensuring that examiners’ decisions don’t fall apart on P3 review or appeal – in that the aggregate appeal rate (and appeal *success* rate) weighs heavily on the assessment of their art unit, and their leadership thereof.

    I have met some SPEs who exhibit an outcome-based attitude. They’re interested, personally invested, forthright, willing to act. Good people! I deeply appreciate these people, and I make a point of naming them in conversations with PTO administration.

    And I have met many SPEs who are completely detached, who exhibit the attitude of: “I don’t understand or care about the technology, I’m only here to support the examiner and follow the rules” attitude.

    I’d estimate that the split of good SPEs to bad SPEs is about 50/50. And *that* is a very serious problem.

    > One examiner I know just refuses to allow anything. He works long hours. Even after he loses repeatedly at the Board, he will resume prosecution with new rejections if possible. Another examiner just issues everything on 1st action and sits around doing nothing but he is on the clock.

    I appreciate the problem – and both examiners would be heavily penalized under the outcome-based compensation system that I described above:

    * Examiner A would be penalized for a high number of OAs per case, and for OAs being reversed.

    * Examiner B would be severely penalized for improper allowances.

  69. Anon September 5, 2016 3:16 pm

    Mr. Stein,

    First, Congrats on the new baby – you certainly want to take the time to adjust to that blessing.

    Second, I do “get” where you are coming from in regards to the entire “time/management” of examiners is an internal Office issue, and that applicants should not HAVE TO care about how much time was spent on the application, providing the very thing that applicants have paid for: a full and rigorous examination that vets the property so that one has a good enforceable patent.

    However – and this is not a small however – there is direct applicant penalties for examiners engaged in fraud on the Office. All monies paid out by the Office are applicant provided. If examiners are fraudulently obtaining more money than is due to them, this is – by immediate proxy – coming out of an innovator’s pocket. This also – necessarily – means that some innovator is NOT obtaining everything that they have paid for, since the Office budget – and hence all the fees paid by applicants – are set for a zero net sum.

    As can also be seen in the comments here, even the implicit acceptance of this type of fraud breeds a certain lack of caring among others in the Office. That lack of caring cannot help but bleed over into the “quality” of the work that is done by the Office. Quality that is subpar, in BOTH those instances of rubber stamping “Reject Reject Reject” OR “Approve Approve Approve” is a type of “cheating” of the applicant, and it can be easily seen that not spending enough time (one way or another) in properly evaluating an application that stems from following the “you get what you measure” and its consequence of “punching the clock” and stopping because of ANY internal metric only leads to a less than full Quid Pro Quo exchange.

    In that ideal world, applications that are completed within the internal metric, but that are not clearly completed in a dutiful manner would earn twice the penalty for the examiner. At least.

    However, since that type of measure simply is difficult to obtain (and remember that it is only on the order of about 2% or less patents that even ever see a courtroom), we have to have some form of “babysitting” – especially considering as well that this irregular time keeping is NOT the first time in recent memory that such has been an issue for the Office – back in 2014 there was a similar internal report (with the harshest part deleted before being sent up in the Commerce ranks, and back then the Office “response” was going to be “zero tolerance.”

  70. Easwaran September 5, 2016 3:59 pm

    “Do you suppose that it might be because David’s comment was left at 3pm on a Saturday of a holiday weekend?”

    Gene, it’s possible, but I don’t think so. I get the distinct impression that people are only concerned about winning the argument. For instance, Old Examiner has made a very important point about the erosion of the quality of the classification system, and somehow he’s been getting attacked for making it.

    In any event, to keep harping on this, David Stein’s proposal is realistic and undoubtedly the best I’ve seen on this topic from either the USPTO or from applicants. In fact, he prepared a more detailed version of this proposal over a year ago: http://www.usptotalk.com/measuring-examiner-quality-through-data-mining-of-office-actions/. Check it out!

    Let’s forget the tribal debate and come together on this.

  71. Gene Quinn September 5, 2016 4:17 pm

    David Stein-

    We probably don’t disagree in a lot of areas, and I know you are approaching this in a logical and rationale manner. The problem I have is that this story is like another brick on the wagon. At some point reality ceases to matter (unfortunately) because we all know there are many examiners that do abuse their power, and the system, and that the USPTO seems incapable or unwilling (not sure which) to do anything about it. So hundreds of examiners getting called out for creating a problem like this just rings true based on the abuses that we all know and see daily.

    You mentioned this: “this information should be used only if the examiners’ performance metrics indicate a significant quality problem…”

    Again, the problem here is the Patent Office per se. They know there is a quality problem, but they always point the finger at applicants and patent attorneys. There is a substantial and growing problem of quality from examiners. The stories about examiners who can barely speak English are too numerous to count, stories of Office Actions that have “INSERT ABSTRACT IDEA HERE” demonstrate some aren’t even customizing the bogus, circular rejections they cut and paste, a look at TC 3600 in the E-commerce Art Units of virtually any case shows extraordinarily low quality by patent examiners who simply pull out a laughably over broad concept from the preamble and claim that is all there is to the claim so it must be abstract. Patent examiners admit they don’t read the specifications we file and now we are learning in this thread that at least some examiners are writing down they work 3 hours when they’ve only worked 2 hours. Quality is a huge problem and unless and until the Patent Office looks at patent examiner quality there is really nothing that can be achieved.

    When I described patent examiners booking time you didn’t work you characterized it this way: “unethical examiners taking advantage of the poorly-targeted compensation system of the USPTO.”

    It is certainly unethical, and would get patent attorneys and patent agents disbarred if that were happening and the ethics police found out. In one case where the ethics police found out about a patent attorney doing this he was disbarred and charged with embezzlement. Clients give us money in trust and we aren’t supposed to take it out of trust until we perform the work and it is earned. I see no reason why it would be a crime if a patent attorney does it and it wouldn’t at least be considered fraud when done by a patent examiner. It seemed the IG for the Commerce Department views this as at least potentially being fraud. If what has been admitted here in this thread by patent examiners is really going on at the Office this is a much larger problem than an ethical violation.

    You said: “I am heavily using both the P3 program and the appeal process to force the reversal of *objectively* bad rejections.”

    I hope you have luck with P3. I’m sure it will work when dealing with examiners who take their responsibilities seriously. In many of the Art Units where SPEs, QAS and Group Directors are forcing bogus rejections to be made I doubt it will help at all. The SPE has the ability to stake the panel and if the SPE doesn’t want to issue they will just stack the panel with those who agree that patents are bad and should never issue, period.

    You say: “If a rejection is bad, I absolutely do not care whether the examiner’s “digital footprint” for the case is 20 minutes or 20 hours. *Why* it’s so bad is the USPTO’s problem to determine and address.”

    Might you consider that the rejection is so bad because: (1) some examiners are expected to issue bogus rejections; and (2) despite earning overtime, some examiners just don’t work enough hours to provide quality. One examiner in this thread talked about booking 20 hours and working 10 because he/she is so genius and efficient. In our line of work spending half the time allocated for a project invariably results in a work product that is half as good. The same is true for examiners. They don’t read the applications and all the prior art to start with, so how could they further cut corners when we all know the Office doesn’t give them enough time to do tasks in the first place?

    -Gene

  72. Gene Quinn September 5, 2016 4:22 pm

    David Stein-

    I apologize for not noticing your comment about the new addition to the family earlier. Congratulations to you and your wife! Cheers.

    -Gene

  73. Anon September 5, 2016 7:13 pm

    Easwaran,

    Please take a better look at the conversation. There is no “attack” on Old Examiner – leastwise, none that is out of line.

    Let’s not allow the old saw of “being polite” overcome the substance of the conversation here. Old Examiner wanted to make an excuse, but was unwilling to live with the down side of the excuse that he wanted to make. There is no “attack” in pointing this out, nor is there one in holding him to the “logic” that he wants to use.

  74. Old Examiner September 6, 2016 1:40 am

    Anon,

    I’m not making an excuse, and I stated that if examiners are perpetrating fraud let management handle it, although that is easier said than done. It isn’t easy to get rid of someone at the PTO. I also stated reasons why the amount of time for searching is out of date, and that it is not easily corrected. Further, I stated many conscientious examiners put in extra time to do their job properly and you state that they shouldn’t do it since it skews examiners’ goals. Either you want the job done correctly or you don’t. I never looked at the clock and said time was up on a case. When I get it right, then it’s done.

  75. Anon September 6, 2016 1:47 am

    No, Old Examiner, that is not what I said.

    Twice now (at least), I have asked you to read a bit more carefully. It is NOT not to DO the work, it is to report all actual hours worked.

    And once again, you need not personalize my comments directly to your own work habits. Clearly, if you are conscientious, then you are not ripping off the system (in either tail of the normal distribution curve). That also clearly does not mean that others are like you, nor does it mean that those NOT like you should get any type of “pass” because there are examiners like you.

  76. Search horizon September 9, 2016 5:38 am

    The report fails to comprehend how the PTO pays its examiners, and therefore applies completely wrong metrics. Its conclusions are absurd.

    Anyone who has ever worked at the PTO as an examiner knows that, in reality, examiners are paid for volume of work they perform, not for the hours they spend. In that sense, filling out time sheets is just a formality. In such a system, trying to determine whether the examiners have been cheating the system by counting their office hours is like trying to fit a square peg into a round hole – it doesn’t work.

    To determine whether the PTO examiners are actually ripping off the government, what the report should have done is determine whether the examiners are paid for more than what they are producing IN TERMS OF WORK VOLUME and QUALITY. Apparently, this is too rational an approach – so, of course, the report does the most convenient thing – adds hours on time sheets and based on perceived deficit, declares how examiners are cheating the system.

    The PTO’s approach – paying people for what value they provide – is far more rational than paying people for hours they spend. Think of it, for example, if your mechanic fixes your car, do you really want to pay for his hours or for the value that he brings to the table?

    It is sad that the report appeals to people’s preconceived notion that government workers are lazy and are cheating tax payers. Given that most readers won’t have a clue about the PTO’s compensation scheme, they will be outraged, without bothering to fully comprehend the true underlying issues.

    Inspector general’s office should be deeply embarrassed to have issued such a deceptive and self-serving report.

  77. Anon September 10, 2016 6:57 am

    Anyone who has ever worked at the PTO as an examiner knows that, in reality, examiners are paid for volume of work they perform, not for the hours they spend.

    So how does overtime even apply?

    When you get basic things completely wrong, your desire to say someone else is wrong has zero credibility, Mr. horizon.

  78. To the board we go.... September 12, 2016 5:09 pm

    I’ve read the report and here is my opinion…..

    Is there fraud? Yes. I say yes because people are people. It was mentioned earlier that even lawyers have been disbarred for such. I’m the first to admit that some of the stuff examiners do would be laughable, if it wasn’t so serious.

    The real question is…how much fraud?

    For teleworkers, I don’t think we will ever know how accurate the report is since currently it is very difficult to determine if an examiner meeting production is working or watching a movie or doing both. Especially since most examiners don’t have to report their work schedule to their SPEs. It’s unrealistic for an examiner to be actively punching buttons on a keyboard every 15 minutes (the lock out time of the computer). There may be hours that pass when an examiner is not active on the computer for many legitimate reasons.
    I have no problem with the recommendations from the report. It would have little impact on how I work.

    The real problem here is that there is no realistic way to know for sure if an examiner is working. SPEs simply do not have the time to watch over every examiner every minute of the day. They rely on production, docket management, and spot reviews of work. It’s an imperfect system, but it’s ours.

    Let me give you an example. Suppose there are two examiners with similar production, docket management, and quality numbers. Also suppose they are both at least fully successful in their ratings. Each examiner works for five hours a day on their computer. The last three hours of each day they are both inactive on their computers. Possibly they unlock there computers to check messages. Don’t get stuck on the three hours. It can be as little as one hour, or it could be at the start of the day instead of at the end of the day. One is working and one is cleaning the house. Which one is doing which? We can never know. I’m not justifying behavior, I’m just stating facts. This is the huge task the PTO faces. It’s compounded by the production requirements. Maybe an examiner has an easy biweek, maybe one examiner is just faster at examining.

    Before you go criticizing me, feel free to offer specific examples, outside of the report, that could be implemented. As an examiner for many years, I can’t think of only one. An examiner can email their SPE when they start work, and email their SPE when they stop work. But this would only ensure that an examiner was near their computer twice a day.

    Moreover, anyone who knows how the error system works in conjunction with the ratings means an examiner can receive many, many errors before anything serious happens. Plus, the way the rating system works means it can take years to fire someone for quality issues. I have seen it first hand….it’s a significant amount of work and time to fire someone for quality.

    Also, I really believe that a percentage of the non-worked hours are simply sloppiness when it comes to recording time. This is an issue, but not fraud in my opinion. The issue arose because, until recently, there has never been a serious focus on recording time worked. The sole focus was on production.

    I also think that a percentage of the non-worked hours by examiners are inaccurate, since an examiner could be working while not actively being on their computer. I print out many documents to read to prepare for prosecution. My computer is inactive, but I assure you that I am working.

    As for examiners standing up…it will not likely happen. A lot of examining is subjective. Very few examiners want to cause headaches for their SPEs for fear of reprisal. There are federal employees that blew the whistle and lost their jobs. Blowing the whistle doesn’t feel good when you don’t have a job to pay your mortgage. I don’t think this makes examiners bad people…just people. Plus, I can’t prove if another examiner is working, so I will eventually be labeled as crying wolf. We could stand up as a corps, but most examiners are worried about just making production. It’s the management’s responsibility to deal with time card fraud.

    Besides, for me, 2% fraud is manageable. With tighter controls this percentage can continue to decrease.

    There is a bigger issue here. There are a core group of examiners that simply cannot or will not write proper 102/103 rejections. In my many roles at the PTO I have had the privilege of supervising and training other examiners. No matter what I did, some examiners would not improve. And I am considered an easy examiner by some. My reports to SPEs had no results. I know SPEs that have been directly lied to by examiners about prosecution facts, but nothing happens. This is an institutional problem. I know it’s of topic, but this is more important to me than 2% fraud.

    To help solve both quality and time fraud issues, junior examiners should be assigned to primary examiners for mentoring. This can reduce the work load on SPEs. The primary examiners need to be chosen wisely, as they are not all equal. However, other time for examiners helping each other is frowned upon, even if unofficially. Therefore primary examiners have little incentive to be of assistance.

    Moreover, examiners and applicants need to stop thinking of the patent process as adversarial. We may not always agree, but we are supposed to be working together, not against each other.

    And, the quality review process sucks. It can be punitive and focus on minor issues that do little to further prosecution. I have helped many examiners write rebuttals to alleged errors. Some of the crap that comes from the quality review process is laughable.

    The PTO needs to go back to the basics on training. Start with 102/103, move onto 112(a)(b), then go to Alice and 112(f). In the mean time, they should institute tighter controls on monitoring examiner’s time and attendance.

  79. John Fetter November 16, 2016 5:44 am

    People working from home MUST BE supervised. If this is not done professionally, human nature, being what it is, makes it INEVITABLE that a percentage of such workers will charge for hours not worked. This will always be an on-going problem. The only way to contain it is to take action against the guilty. First offense, warning. Repeat offense, hearing by panel with power to discharge offender. I believe that working from home provides a near-as-can-be detection-free opportunity for the totally unethical to have meetings with (1) parties wanting to make certain the patent is granted and (2) parties wanting to make sure NO patent is granted. Documents appearing on screen can be photographed. No paper trail. Donations in cash “towards children’s college fees”. Surely it is common knowledge that there will always be people who are happy to do this kind of thing, in order to make hundreds of thousands, perhaps even millions, extra per year?

  80. SpellCheckYourOfficeActionsYouMorons December 7, 2016 8:24 pm

    It would help if they quit hiring failed engineers who can’t figure out spell check and don’t have the humility to admit mistakes…. Then again… if the Examiners had those characteristics, maybe they would have never failed at being real engineers in the first place.