Hearing on Examiner Fraud a Big, Fat Nothing Burger

By Gene Quinn
September 20, 2016

Laughing, crying theater masksLast week the House Judiciary Committee held what seemed like it was going to be an oversight hearing in order to address the allegations of financial fraud by patent examiners made in the Inspector General’s recent report detailing time abuses at the United States Patent and Trademark Office. Prepared statements released in advance of the hearing talked tough, but that was pretty much it. Insofar as getting to the root of the problems identified in the IG report the hearing turned out to be a big, fat nothing burger.

Sadly, it is hardly surprising to learn that some patent examiners are grossly exaggerating the number of hours they work. It is well known inside and outside the Patent Office that there are rogue patent examiners among the ranks of the 8,400 examiners that work at the Office. Some patent examiners proudly proclaim to applicants and attorneys that they refuse to follow Federal Circuit precedent, some patent examiners haven’t issued a patent in years, decisions of the Patent Trial and Appeal Board are ignored with prosecution systematically being reopened, new searches are conducted despite it being explicitly against Office policy, some examiners play games by constantly pulling back applications on the brink of appeal thereby preventing applicants from ever getting to the Board. Given this widely known abuse of power by more than a few patent examiners it can’t shock anyone that the rogue nature of examiner behavior extends to financial fraud.

Congressman Jerrold Nadler (D-NY) defended the Office in his prepared remarks, explaining that there were flaws with the methodology of the IG study, which make the conclusions unreliable. For example, it is entirely possible that patent examiners were indeed working while they were not logged into the Patent Office computer systems. Of course, that at best means there is no way to know whether patent examiners are working or not, which is why the IG report recommended the sensible step of requiring patent examiners to log into the Office computer systems whenever they are working.

But how can any entity operate when they have no way of actually knowing whether their employees are working? As we learned during the “Examiner A” debacle, the USPTO is not capable of knowing when patent examiners are submitting fraudulent time records; Examiner A submitted 730 hours of time that was not worked. Astonishingly, Examiner A, who submitted 19 weeks of fraudulent time and was reprimanded 9 times for low examination quality, wasn’t fired! He quit so that this episode wouldn’t turn into a blemish on his employment record.

Those who want to sweep the IG report under the rug or conclude that the methodology was flawed are missing a much bigger picture. Those making excuses for the Patent Office obviously haven’t been paying attention to how at least some patent examiners are defending their actions in light of the IG report.

Some patent examiners that have commented here on IPWatchdog.com have attempted to explain that their actions are innocent, but have actually admitted to committing fraud. These patent examiners have explained that because of their superior talents they are capable of doing their work in a fraction of the time the Office thinks it should take them to do the work. Multiple examiners have said here on IPWatchdog.com that if they are, for example, allocated 3 hours to do a task and can do it in 2 hours then there is absolutely nothing wrong with them claiming all 3 hours on their time sheet. One examiner actually said that he/she is capable of doing work twice as fast, using an example where the Office allocates 20 hours to complete a task, presumably an entire application, but the examiner is able to do the task in 10 hours. Of course, that examiner explained he/she is completely justified in claiming all 20 hours worked on their time sheet.

These examiners seem to see absolutely nothing wrong with claiming on their time sheets that they have worked the full time that they were allocated regardless of the time they actually spent doing the task. The problem, however, is that if this is happening it is fraud pure and simple. Indeed, this type of billing is fraud that would get an attorney disbarred, and has gotten attorneys disbarred in the past – not to mention charged with embezzlement.

The Patent Office does not seem to have the ability to identify when an examiner claims to have worked the full allocated time but instead worked fewer hours. That is a huge problem that should concern everyone. Unfortunately, this type of fraud is meaningless to a bloated government that year after year promises to address fraud wherever it is, but then turns a blind eye when evidence suggesting a problem is uncovered.

Some will no doubt be disgusted that patent examiners are over claiming the hours they work and still claiming overtime without working more than 40 hours. But what is worse, at least in my opinion, is what this means for patent quality. In the patent sphere, like so many other areas of endeavor, the more time you spend the better your work product. Sure, there will come a point of diminishing returns, but the Patent Office has been pushing a patent quality initiative for several years now and it has been difficult not to notice that the Office idea of quality is that applicants and patent attorneys need to do a better job. What about patent examiners?

Everyone in the industry knows that certain patent examiners produce extraordinarily low quality, and now it seems we have learned that at least some patent examiners are spending only a fraction of the time the Office allocates to complete a task and then they claim the full allocated time on their timesheet? Are you kidding me? In light of these serious IG allegations patent quality initiatives need a reset button. A spotlight needs to be placed on examiner quality, which is unfortunately not what it should be.

There will be some who will want to take issue with my characterization of patent examiner quality, but everyone in the industry (both domestically and abroad) knows patent examiner quality at USPTO is lower than it could and should be. Attend any conference and when the discussion of searching authorities is discussed do you ever hear anyone suggesting that the best searches are performed by the USPTO? Does anyone in the industry ever say that the highest quality examinations take place in America?

Unfortunately, the House Judiciary Committee talked tough in written remarks but didn’t seem at all interested in getting to the bottom of the matter one way or another during the hearing. USPTO Director Michelle Lee was allowed to explain away the very serious allegations contained in the IG report with little or no meaningful push back. Of course, it is at least a little unfair to blame Director Lee for the problems with recalcitrant patent examiners. Even if everyone in senior management were in complete agreement that certain patent examiners needed to be fired it would be impossible to terminate anyone past their probationary period. Indeed, it is more difficult to fire a federal government worker, particularly a federal government unionized worker, than firing a tenured professor at a university. For that we have the federal bureaucracy to blame, not the Patent Office or anyone in particular, but that means the Patent Office is largely left to operate hoping that those past their probationary period remain committed to their jobs.

Members of the House Judiciary Committee did ask Lee about low patent quality, believing that the non-existent increase in patent litigation they seem to believe exists is owed to low patent quality. Patent quality is a perfectly fine topic to discuss, but Congress seems unable to put the pieces together that are right in front of them. Patent quality starts with patent examiners and it seems relatively clear that the Office has on many levels lost institutional control of patent examiners – whether it is with respect to bogus rejections, reopening cases, unauthorized new searches, snatching cases back from appeal, and now by working less than full-time and still getting paid for overtime.

I guess when the fraud is only 2% of the hours worked that is seen as a moral victory and a sign of good government. Perhaps 2% fraud in government is the best we can expect, but if you dig even one fraction of a level deeper within the IG report you will notice that almost 45% of those hours characterized as fraudulent were claimed by fewer than 5% of patent examiners. Of course, that begs further inquiry, but it doesn’t seem like any further inquiry is going to be forthcoming.

How is it possible that less than 5% of patent examiners accounted for nearly half of the fraudulent hours identified by the Inspector General? If there are valid reasons that the many hard working, conscientious examiners might be working and not logged in then why are so many of these questionable hours disproportionately being claimed by only a small number of patent examiners?

Anyone that is objective would have to conclude that there seems to be a small number of patent examiners that are engaging in abuse. That seems obvious just based on the admissions made in comments here on IPWatchdog.com. The sad reality, however, is that the Patent Office is unlikely to do anything or even ask any further questions. Patent examiner abuse by a small percentage of examiners has been going on for years relating to substantive examination and the Office has never done anything to stop it, so why would they do anything here?

Whether the IG report is good, bad, ugly or flawed, everyone in the industry knows that at least some of the inmates are running the asylum at the USPTO. Unfortunately, that doesn’t seem like it will change any time soon. We can talk about patent quality and how important innovation is for the U.S. economy, but that is nothing more than hot air until the USPTO regains control and the bad apples are removed.

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 23 Comments comments.

  1. Anon September 20, 2016 10:24 am

    Excellent article touching on one of the two different “tails” of the expected normal distribution curve of examiner reported time.

    A sister article touching on the other “tail” may be appropriate.

    Part of the “quality” discussion stems around that other tail and the non-reporting of hours (the “volunteered” but unreported overtime hours).

    Seeing as the Office does not want to leave behind its “one-size-fits-all Widget” mentality, the problem with the “lower tail” is that all such under-reporting distorts the Office metrics as to how much time may actually be needed for a quality examination.

    Since we do not have any indication of the “density” on this under-reporting, we really cannot tell just how distorted the “aim” is (albeit we surely know that whatever the aim is, it is most likely NOT correct).

    And while other commentators (and this commentator) have correctly stated that the bargain applicants strike with the Office has nothing to do with ANY sense of the internal Office time metric, the reality of the situation is that our clients are forced to suffer for the examiners gaming those same internal Office metrics.

    In the case of the subject of this article, the fraud is directly linked to theft from innovators because the Office budget has only one pay-in: fees from innovators (and that budget is a zero sum game, so any illicit taking is directly traceable).

    The other “tail” (the one I speak of here) has a different effect (perpetrated by different people). Because these are different problems concerning different sub-groups of examiners, it is imperative that there be no “averaging” (two different wrongs do not make a right). To this end, I would flat out reject any use of some ill-calculated “2%” as any type of comparative indicator.

  2. Alex September 20, 2016 11:07 am

    I agree that examiner quality is an issue, but the OIG report is a distraction from that issue. As you noted, less than 5% of examiners account for nearly a majority of the unsupported time. Only 3.5% of examiners claimed more than 4 hours a week of unsupported time. The population of examiners abusing the system is small. It must be eliminated, but it does not warrant the spotlight.

    On the other hand, the GAO report states that 80% of examiners are doing voluntary overtime to meet production requirements.

    “Attend any conference and when the discussion of searching authorities is discussed do you ever hear anyone suggesting that the best searches are performed by the USPTO? Does anyone in the industry ever say that the highest quality examinations take place in America?”

    Would you really expect the company that charges less for its services to do a better job? The other big patent page recently posted a paper that stated that EPO examiners got 2-3 times more time for search than PTO examiners. Is it at all realistic to expect a better search in half the time?

    Examiner quality is clearly both a function of search time and quality oversight. Your post, and most practitioners, only addresses quality oversight. But there is virtually no chance of getting a substantial increase in quality oversight alone past POPA. I think that POPA could be sold on an increase in both quality oversight and search time. The core of examiners that want to do a good job would respond well to increased accountability that was tied to an increase of time for the job. The vast majority of examiners would use the additional time to do better searches.

    Of course it would mean that applicants would have to pay more, and I don’t expect a lot of enthusiasm for a significant fee hike. So the stakeholders, POPA, and PTO management will remain deadlocked, and we’ll keep seeing this ‘quality oversight only’ sentiment echoed for another half century until the examination process gets so absurd that congress overhauls everything.

  3. Anon September 20, 2016 12:18 pm

    “The spotlight” is not – and should not – be limited to any one item, Alex.

    Especially when the fraud in question results in millions of dollars of misappropriated innovator funds.

    As I mentioned, the funding situation is a zero sum game – those funds misappropriated means that they will not go to an actually worthwhile activity.

    One of the points not covered by Gene was that this was NOT the first such instance of exactly this type of behavior (internal “sanitized” reports exist from the 2014 timeframe). From that previous era, the Office was supposed to have implemented a “zero tolerance” policy.

    It is quite evident that that effort did not meet its “zero” goal.

  4. Anon September 20, 2016 12:26 pm

    Alex,

    Your comment also exemplifies the problems noted with the distortion from the separate lower “tail” of a normal distribution curve.

    I was not aware that the “weight” for that lower “tail” was 80%.

    That makes the problem of the “false” reporting on the law side (that skews to the unrealistic “standard”) even more problematic.

    Maybe examiners should just report actual times – and have POPA support them if those actual times are not in alignment with the internal Office metrics…

  5. OLd Examiner September 20, 2016 3:25 pm

    Gene,

    You stated “Attend any conference and when the discussion of searching authorities is discussed do you ever hear anyone suggesting that the best searches are performed by the USPTO?”

    Well, who exactly is doing the best searches? Is it the International Bureau? I think not. I might use the references they cite 5% of the time. Is the attorneys filing the applications? Again, I think not. If an IDS is even filed, most of the ones I review don’t have the best art. Further, many attorneys file IDSs with 75-100+ references without any comment. It is nothing more than a document dump. If the best art is found, it is, in most cases, by the examiners.

  6. Old Examiner September 20, 2016 4:46 pm

    As to quality oversight at the Office, it isn’t so easy. When I started, there weren’t many art units, and the SPEs of the units, in most cases, previously examined in their units and knew the art. My SPE certainly did. If you didn’t have the best art, he called you on it right away. That is no longer the case. The Office has grown so large that most SPEs do have not knowledge of the art in their units to any great extent. Therefore, unless they plainly see a lousy rejection, they don’t know if the best art is even in the case.

    As to Quality Review, they merely sample random cases as far as I am aware. That was the way it was done when I worked there many years ago. Back then, we only did a mandatory search on every 5th case or so that we reviewed. Unless the prosecution history was poor, no further search was done. QR is only going to catch so much.

    I assume once an examiner is on the bad list, he has more cases reviewed. I do know it is tough going after an examiner because of POPA, but I’ve seen it happen a few times.

  7. Gene Quinn September 20, 2016 6:05 pm

    Old Examiner-

    I can tell you that the best searches I see are the ones that I do with the patent searchers I hire. The only reason our searches don’t uncover something is (1) the examiner is using irrelevant prior art, which happens unfortunately in many cases; or (2) because in the private sector you can’t find everything that is relevant because of the 18 month publication blackout period.

    As for who is doing better searches, most practitioners would say the searches are better in other countries.

    As for the document dumping, I don’t like doing that and I don’t think it is proper or necessary, but a strong argument can be made that the way inequitable conduct has evolved and constantly re-evolved the safest thing to do is to submit everything. Unfortunately, the courts have made a lot of this stuff worse in an attempt to regulate behavior.

    As for quality, let me give you an example. The best example of a bogus examiner action I can give is a case where I went and for every single change to the claim I pointed to multiple places in the original filing where that exact text would disclosed to demonstrate it was not new matter. Each amendment was rejected as containing new matter. That was just an examiner either (1) screwing with me; or (2) who didn’t care to read because it was only a response to a first office action.

    I know there are examiners who take their job very seriously. For those of you examiner who are very professional and do take your jobs seriously you need to understand there are many among your ranks who do not and who produce extremely low quality. They give you a bad name. You should demand the union do something about those examiner rather than protect those examiners.

    -Gene

  8. Gene Quinn September 20, 2016 6:08 pm

    Alex-

    You say: “Of course it would mean that applicants would have to pay more…”

    Why would applicants have to pay more? We know because of the admissions that some patent examiners are working only part time and writing down full time hours on their time sheets. Why shouldn’t the Office make sure that examiners are actually working full time hours before they get any overtime and not just fudging their numbers like some have admitted here on IPWatchdog.com to doing?

    -Gene

  9. temprand September 20, 2016 9:06 pm

    Gene- I appreciate your continued acknowledgment of the good examiners. I’ll admit, until recently, I thought some stories of other examiners were overblown. I try to do good work, and require it of those I review. So I assumed everyone else was doing their best, or at least okay.

    Then, a few months back, I got a case transferred to me. It was after final rejection. The only rejections had been 101/112s. No art. The rejections were difficult to understand. In fact, the Applicant’s response included the memorable statement to the effect that “it is unfair that this office action is final because we have yet to receive any comprehensible rejection so that we can even formulate a response.” I looked at the case, and it was immediately clear that the 101 and 112 were improper, and I found good art for a rejection within about 10 minutes. So I withdrew the final-ness of the rejection, withdrew the rejections themselves, and made the 103 rejection that should have been made in the first place. I feel bad for the Applicant, because they had spent 6 months and several thousand dollars dealing with the first examiner.

    So yes, I think examiners and the office need to realize that there really are some very bad examiners/work product that goes on. Not most of it, but enough that it should be handled both for Applicants, and for the honor/reputation of the office.

  10. Old Examiner September 21, 2016 9:53 am

    Gene,

    You wrote: “As for quality, let me give you an example. The best example of a bogus examiner action I can give is a case where I went and for every single change to the claim I pointed to multiple places in the original filing where that exact text would disclosed to demonstrate it was not new matter. Each amendment was rejected as containing new matter. That was just an examiner either (1) screwing with me; or (2) who didn’t care to read because it was only a response to a first office action.

    I know there are examiners who take their job very seriously. For those of you examiner who are very professional and do take your jobs seriously you need to understand there are many among your ranks who do not and who produce extremely low quality. They give you a bad name. You should demand the union do something about those examiner rather than protect those examiners.”

    I agree there are bad examiners. I know some. When you get inane Office actions in a case, I would contact the examiner’s SPE. If that proves fruitless, contact the Group Director. I don’t know what they will do, but maybe, at least, you can get the case transferred to another examiner.

  11. Alex September 21, 2016 12:46 pm

    Gene,

    “Why would applicants have to pay more? We know because of the admissions that some patent examiners are working only part time and writing down full time hours on their time sheets.”

    As you appeared to be aware of in your post, the number of examiners engaging in this abuse is small. Correcting the issue would at best marginally increase office product quality by 2-5%.

    And it is exceedingly unlikely that there would even be a 2-5% increase. While flagrant time abuse (i.e., claiming time on a day where the examiner did not log in, or did not stop by the office) can be identified and eliminated, there is no practical way to identify inconspicuous time abuse (i.e., finishing a 15 hour application in 10 hours, and remaining in the office reading a book for the remaining 5 hours).

    I suppose if you’re generally happy with PTO examination, a 2-5% increase in quality would sound great. But for everyone interested in meaningful examiner reforms, the idea of wasting the current political capital to get a 2-5% increase looks plainly foolish.

  12. Gene Quinn September 22, 2016 10:49 am

    Alex-

    You are entitled to your opinion, but you are really sticking your head in the sand. It seems you are intentionally missing the point so you can conclude there is nothing to see.

    Should the Patent Office try and find out who is working part-time and getting paid for 40 hours and ALSO collecting overtime? Absolutely! If you can’t understand that then there isn’t much anyone here could ever say that would enlighten you. Fraud in an organization must be rooted out. It is a cancer.

    The bigger picture here is the USPTO is completely unable (or unwilling or a combination of the both) to get recalcitrant examiners to do what they are supposed to do. There are many examiners who have not issued patents in years that still collect pay checks and overtime, for example. There are examiners that conduct new searches after they are reversed by the Board. There are all kinds of bogus rejections given because supervisors demand that patents be rejected at all costs. And now we learn that there is a very real reason to believe that up to 5% of patent examiners are submitting questionable, or what the IG called fraudulent, hours.

    I suggest you take your head out of the sand and notice that the inmates are running the asylum! The Patent Office has lost institutional control.

  13. Anon September 22, 2016 11:12 am

    The most recent report in this series by Ron Katznelson should give pause to any results to be taken away from the study.

    Having said that, the separate discussion points with examiners having actuallly volunteered admissions of fraud remain troubling – and are troubling in more than one manner.

    First of course is the actual fraud perpetrated. This is a real theft against innovators given that this is a zero sum situation and the Office disperses these illicitly obtained funds through the only source of income: innovator fees.

    The second aspect of why this is so troubling is the apparent disregard for why this behavior is wrong, and the reflection on the “culture” within the Office that evidences such brazenness (especially given that the Officr supposedly had had a “zero tolerance” view stemming from similar internal findings back in 2014).

    I look forward to a report that hews more closely to standard and acceptable statistical rigor.

  14. Alex September 22, 2016 2:47 pm

    Gene,

    It’s pretty telling that you decided that my head is in the sand without responding to my points.

    1) Correcting this behavior will have at best a 2-5% impact on quality. More likely much less, due to the practical issues with detecting non-flagrant time abuse.

    2) There are political capital constraints on any labor policy change at the PTO.

    Do you dispute either of these facts?

    You appear to be interested in chasing a marginal improvement with the available political capital. Thats fine, but I think its short sighted.

    The PTO recapturing 2% of hours is not going to take back the asylum from the inmates. But it will spend management’s political capital and put POPA on the defensive. Good luck getting any real examiner accountability improvements at that point.

  15. Anon September 22, 2016 3:06 pm

    Alex,

    I think your views would have more merit if you understood the picture a bit more.

    The “political capital” had already been spent. See the “zero tolerance announcement” from the previous 2014 internal Office report on the same problem.

    As to “not take back the asylum,” I will agree with you. I will also say that every little bit helps and that when you have the “culture” that outfight fraud is “ok” in an expressed ‘zero tolerance’ zone, that THAT is a prime place to start.

    As to the effect on quality, I do not think that there is an equivalent dollar or time percentage to a quality percentage (your logic equating the numbers is flawed at best). I do not know what the actual correspondence would be, but just looking at the lower “tail” – and if I recall correctly that the number given of examiners not properly reporting the numbers (and reporting numbers LOW) being 80%, the ability to properly give examiners the right hours to do the job (and what THAT means for quality) indicates a HUGE problem.

  16. Gene Quinn September 22, 2016 11:59 pm

    Alex-

    I actually did respond to your points, so your latest comment only proves your head is in the sand.

    You think that 2-5% of patent examiners committing financial fraud is some kind of victory. Anyone who is at all capable of thinking straight would realize it is a failure. Fraud is a cancer and need to be rooted out, period. Your tolerance of fraud speaks volumes.

    You claim that correcting the fraud will have 2-5% impact on quality. There is no way to rebut that because you make that up from whole cloth. It is not a correct statement. You say it without any proof, no support, no evidence. You are guessing. However, even assuming you are correct, you say it as if that doesn’t provide ample reason to root out the fraud. When the Patent Office is engaged in a quality initiative and continually blaming patent applicants and inventors for the problems they lose all credibility when we know their own Patent Examiners are fabricating the hours they work.

    Political constraints being placed on the firing of examiners who are engaging in fraud is an unacceptable excuse. Those who are committing fraud by claiming they work 40 hours when they work 20 hours absolutely must be fired, period. It strikes me as asinine to believe it is a waste of political capital to fire people who are engaging in fraud.

    As far as the 2% of hours, congratulations. You’ve been brain washed by the talking points. You ignore the fact that we absolutely know there are examiners engaging in fraud.

    Although you mock my saying that the inmates are running the asylum I notice you refuse to address the reality that many examiners never issue patents, they issue bogus rejections, they reopen cases after reversals by the board, they conduct new searches in violation of Office policy, etc. etc. So if you want to mock me for saying the inmates run the asylum then respond to the arguments that prove the recalcitrant examiners are running the show and the PTO management is unable to do anything about examiners who refuse to do their jobs!

    Frankly, your commentary here is rather pathetic. Calling it head in the sand is being polite. You are ignoring fact and making things up.

    -Gene

  17. Alex September 23, 2016 3:01 am

    Gene,

    “You think that 2-5% of patent examiners committing financial fraud is some kind of victory.”

    Can you point to exactly where you’re getting this from? My first post clearly said “[The population of examiners abusing the system] must be eliminated, but it does not warrant the spotlight.” Your post is riddled with this opinion that you’ve fabricated for me!

    Examiners committing flagrant time abuse should, and almost certainly will, be fired. If your sole purpose here is to call for their termination, you’re wasting your considerable voice in the community. It’s a given.

    It would be far better to lobby the PTO’s management to increase examiner and supervisor accountability. By my estimation, an examiner can be charged with 5 errors without endangering their bonuses. That is an absurdity! We need policies where a single error costs an examiner their bonuses for the year. Or policies which hold supervisors accountable when their examiners are reversed at the board. Or policies that address the issues you’ve raised with reopening and new searches.

    What we do not need are policies which address the detectable symptoms of time fraud. We do not need policies that require examiners to record when they leave the building, or account for their bathroom breaks away from their computer. But if the community focuses on the time fraud, those are the sorts of policies we will get. Policies which are defeatable and which do nothing to actually promote examiner quality.

    The only people who will benefit from the PTO focusing foremost on time fraud are the examiners committing non-flagrant time fraud and muckrakers.

  18. Anon September 23, 2016 7:51 am

    Alex,

    It is not an “either or” situation.

  19. Old Examiner September 23, 2016 5:23 pm

    Alex,

    You stated: “It would be far better to lobby the PTO’s management to increase examiner and supervisor accountability. By my estimation, an examiner can be charged with 5 errors without endangering their bonuses. That is an absurdity! We need policies where a single error costs an examiner their bonuses for the year. Or policies which hold supervisors accountable when their examiners are reversed at the board. Or policies that address the issues you’ve raised with reopening and new searches.”

    I disagree. Having one or even up to 5 errors isn’t absurd depending on what constitutes an error. A supervisor or quality review specialist might conclude there is an error, but the examiner might disagree. Similarly, the Board of Appeals might render a lousy decision, but the doesn’t mean the examiner, or SPE who approved it, was incorrect. Higher courts overrule lower courts all the time. I’m sure many people still agree with lower court decision. As an example, I’ve only been completely reversed one time at the Board in decades of examining. It was clearly an incorrect decision according to my SPE, Group Director, and Administration officials above the Director level. So should this be considered an error which eliminates my award and affects my SPE’s rating. I think not.

    As I have previously stated, there are examiners who do lousy work and should be reprimanded, but it is easier said than done. If an examiner is clearly doing a substandard job with frivolous rejections, as I previously stated, try to resolve it with their SPE (some of whom won’t cooperate) or the Group Director in lieu of fighting it out with the examiner.

  20. Gene Quinn September 23, 2016 11:16 pm

    Alex-

    I’m happy to tell you where I get the 5% number. I first, I added the 2-5% range because that is what you’ve been saying, so you might want to read your comments. Second, the IG report says that 5% of patent examiners accounted for nearly half of the fraudulent hours identified. Patent examiners and others say there are many reasons why patent examiners are working while not signed in, but that doesn’t really fly when you realize that 5% of examiners are responsible for close to half of the questionable hours. So it would seem pretty clear that there is something unusual going on with 5% of the examiners compared with the other 95%.

    You say: “Examiners committing flagrant time abuse should, and almost certainly will, be fired.”

    That is simply not true. Examiner A submitted 730 hours of time he did not work and was not fired. He quit rather than have a negative reprimand in his work file. It is impossible to fire an examiner once they have passed their probationary period. You might not want to believe that, but it is true nonetheless.

    You say: “It would be far better to lobby the PTO’s management to increase examiner and supervisor accountability.”

    What exactly do you think the point of all the articles I’ve written over the summer has been? I’be been practically taunting the PTO management to do something.

    You say: “The only people who will benefit from the PTO focusing foremost on time fraud are the examiners committing non-flagrant time fraud and muckrakers.”

    Not sure how you get from A to B and conclude that we might as well just accept the fraud because getting rid of fraud will create more fraud. With that logic we should, I guess, encourage MORE fraud. After all, fighting fraud is worse than just paying those committing fraud.

  21. Gene Quinn September 23, 2016 11:18 pm

    Old Examiner-

    Your comment above originally was directed at me and said “you said,” but you were quoting Alex. I made a change to reflect that you were quoting Alex and discussing with him.

    -Gene

  22. Old Examiner September 24, 2016 12:31 am

    Thanks for the correction Gene!

  23. Mr Xaminer_Truthteller September 25, 2016 5:41 am

    There is A LOT of time/work abuse technically going on at the USPTO of various degrees (particularly by Primary Examiners) who are given free rein and are not really held accountable PER SE. Many (but certainly not all) primary examiners will spend just a short amount of time actually working on an application, cobble together a bogus low-quality office action, and then claim all hours worked or even enough hours for paid overtime (and the high output of “junk” office actions may even lead to production BONUSES). Primary examiners MAY get a few cases pulled for quality review, and if an error is found, it’s no big deal as so many office actions are sent out it doesn’t really affect their rating that much. It’s really no secret, upper management is taking a blind eye and a deaf ear to the situation, and OIG and others are simply not investigating things in the correct manner to really understand what is REALLY going on or what recommendations to make to improve the situation at the PTO.