Patent Office workforce reduction should focus on eliminating ‘dead weight’ patent examiners

By Gene Quinn
April 23, 2017

Mick Mulvaney. Photo by Gage Skidmore. CC BY-SA 3.0.

Mick Mulvaney. Photo by Gage Skidmore. CC BY-SA 3.0.

Earlier this month Mick Mulvaney, Director of the Office of Management and Budget (OMB), sent a 14-page memo to all agency heads detailing what they are to do to forward President Trump’s plan to reduce the size and scope of the federal government.

The memo titled Comprehensive Plan for Reforming the Federal Government and Reducing the Federal Civilian Workforce explains that President Trump plans to “create a lean, accountable, more efficient government that works for the American people.” The memo explains that streamlining the federal government might “include merging agencies, components, programs, or activities that have similar missions.” One very specific and unambiguous way memo explains th

e President’s goals will be accomplished is through each agency pursuing a long-term workforce reduction.

The memo leaves no room for question as to whether this is a request or order. When agencies submit their fiscal year 2019 proposed budgets to the White House in the fall of 2017, “agencies will submit their proposed Agency Reform Plans to OMB.”

Assuming that the United States Patent and Trademark Office (USPTO) follows the directives of the Mulvaney memo, it is clear what should happen. In pursuing President Trump’s federal workforce reduction plan the USPTO must target those patent examiners who have long been refusing to do their jobs. Losing these patent examiners to a workforce reduction will cut the “dead weight” from the Office without the Office losing productivity.

The Mulvaney memo also instructs agencies to “take near-term actions to ensure that the workforce they retain and hire is as effective as possible.” In order to accomplish this task the agencies are instructed to “determine whether their current policies and practices are barriers to hiring and retaining the workforce necessary to execute their missions…”

Anyone familiar with the way the USPTO hires patent examiners knows that hiring practices are not by any stretch of the imagination aimed at hiring those that are most qualified for the job, or who are most likely to be quality patent examiners. Of course, most of the absurdity associated with hiring practices is not the fault of the USPTO, but rather blame resides with the federal government.

The federal government has an outdated civil service system that simply fails to hire the best, brightest, and most qualified employees. The system, implemented through USAjobs.gov, only allows agencies to interview those who score the highest on a written application submitted online. Points are given for previous federal work experience or military experience, regardless of whether it is at all relevant to the job for which application is being made. Similarly, points are given to minorities and those with disabilities, again without regard to job suitability. Thus, the perfect applicant for a position who has never been employed by the federal government, who is not a minority, and who is not disabled can and does easily score fewer points than someone without the best, most appropriate background, training, and experience for a position.

The solution is easy, although it would be a philosophical change of mammoth proportions. Eliminate points on the USAJobs.gov application for anything that does not directly relate to qualifications for the job being applied for. That would instantly, and rather dramatically, raise the quality of hires at the USPTO.

And another thing that USPTO must do is this: Hire only those fluent in English to be patent examiners. As crazy as it sounds, patent examiners are hired by the USPTO who struggle mightily with the English language. Indeed, this is the largest single complaint I hear from patent professionals about patent examiners. It boggles the mind how a patent examiner who will be required to correspond in writing and speak verbally with applicants and their representatives can be employed for a position when they are not fluent in English, which is the official language of the Office.

With all of this in mind the USPTO must target for workforce reduction:

  1. Those patent examiners who have not issued patents in years (there are many). These examiners are already not doing their jobs and their absence will simply not cause any hardship on the agency.
  2. Art Units with single digit allowance rates, of which there are more than a few. Indeed, Art Units like 3689 have such low single digit allowance rates that closing it and other similarly situated Art Units down, as part of a workforce reduction plan, would not cause any hardship on the agency. See Where Patent Applications Go to Die.
  3. Those patent examiners who are known to have gamed the system and who submit falsified time records. Although the Inspector General’s report did not identify these examiners, it appears as if 5% of the examiner workforce has been submitting questionable, if not fraudulent, timesheets. See here, here and here.
  4. Those patent examiners who are unable to pass English language fluency screening. While many of these examiners may be technically competent, it is simply unfair to applicants to be assigned an examiner that is not fluent in the language of the Office.

The Mulvaney memo instructs agencies to “consult with key stakeholders including their workforce” when developing their workforce reduction plans. Hopefully the USPTO will follow Mulvaney’s recommendation and hold the typical roundtable stakeholder meetings across the country, or at the very least at their headquarters in Alexandria, Virginia.

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 16 Comments comments. Join the discussion.

  1. Paul Morinville April 23, 2017 3:32 pm

    RIF the PTAB. Fire the lot of them. Keep only those who review appeals from examination

  2. Invention Rights April 23, 2017 4:17 pm

    Yes, eliminate all the PTAB trial judges. Deny all petitions. Issue valid patents the first time, fix them in reexam, or leave it to the district courts. Nothing less can restore the integrity of our patent system. This can be done immediately, without help from Congress.

  3. patent leather April 23, 2017 6:19 pm

    What scares me even more than the dead weight examiners is the prospect of the USPTO not being able to hire any new examiners due to budget cuts. The number of examiners is currently dwindling down: https://www.uspto.gov/corda/dashboards/patents/kpis/kpiExaminers.kpixml while the number of new filings is increasing. This is a recipe for disaster. The USPTO should hire another 2,000 examiners to help work through all the backlog. Unfortunately, under Trump, (and I hope I turn out to be wrong), the USPTO budget is not looking good.

  4. angry dude April 23, 2017 9:47 pm

    The doc said ‘to the morgue’, to the morgue it is!

  5. angry dude April 23, 2017 9:54 pm

    I am unfortunate enough to work for US federal government (after I was screwed by the same government as an independent inventor)

    The percent of “dead weight” as you call it is at least 80% (and that’s being very generous)

    Well, (hopefully) some of that “dead weight” can be (partially) recovered (by threatening to fire them if they don’t produce)… but 30-40% are totally useless so have to go…

  6. Anonymous April 24, 2017 5:35 am

    Gene, I’m glad this has been recognised. Those of us who work outside the USA are frequently astonished at the poor quality of US examination. The other major offices (EPO, JPO, SIPO) are ‘way ahead. For every fine, professional US examiner there is at least one who simply shouldn’t be there. You know from the response to sound arguments that they couldn’t possibly have read the documentation properly. Because they couldn’t comprehend what was being said, or because they couldn’t be bothered, and simply said no, having regurgitated a stack of irrelevant boiler plate and Disney-size flights of imagination? Who knows?

    Of course, this might be due to a particular American malaise. The (American) research manager of our US affiliate once told me that US college students want into the big money professions – doctor, dentist, investment banker – rather than low-paying science. As a result, the labs of that affiliate have a very high foreign-born proportion, because it is hard to recruit US scientists for every vacant job.

    It must be a worry that, with the Trump Administration’s apparently negative view on the value of science, the marvellous US advantages in this field may be lost, and a lower proportion of inventions might not exist to make it to that substandard Examiner corps.

  7. Curious April 24, 2017 8:23 am

    Keep only those who review appeals from examination
    I don’t know, I would keep the new ones and ditch the ones that predated the PTAB. Many of the old ones cut their teeth during the Dudas era of “reject, reject, reject” (in the parlance of the BPAI, it was “affirm, affirm, affirm”).

    While this data is fairly old, I would cull some of the ones that are on the top of each chart. https://sites.google.com/site/ptabdotus/stats/judges-total-percent-ranked-july-2010-thru-july-2012.

    Whether your appeal is affirmed or reversed should heavily depend upon the APJ writing the decision — however, it does. In a perfect work, over a period of years, the affirmance/reversal rate of APJs should all hover around the same number. However, they don’t. There are some APJs that consistently affirm at a much higher rate than other APJs. I won’t name names, but they are pretty easy to identify.

    Come to think of it, that it is a good FOI request — ask for any document that shows, over a period of time, individual APJs affirmance/reversal rate.

    While not a workforce reduction idea, if we were to get rid of IPRs, instead of ditching a lot of the APJs, we could have each APJ write an opinion, so instead of 1 opinion, you get 3 opinions, and require that they be written independently. It wouldn’t take but a month’s worth of opinions to show just how inconsistent individual APJs are in applying the law.

    BTW — I agree with dumping most of the 3600 patent examiners (business method side). Their view of the law is so tainted that they cannot be rehabilitated. It would be easier to purge them all, and you could probably bring in 4 examiner’s from other art units to do the work of every 10 current 3600 examiners.

  8. IdiotProneWatchDog April 24, 2017 8:41 am

    So effectively let go of the patent examiners who don’t give the allowance rates expected? That’s dead weight? Under whose measures?

    Maybe they should buy more rubber stamps and lower quality so that imaginary allowance rate goals are met? How about law firm hiring better-qualified candidates?

    I’m pretty sure business methods have those 1 digit allowance rates. Maybe business methods art unit magically gets that 101 allowance stamp? Or maybe the solution would be to lower 101 quality and let the courts sort it out? I’m sure the courts would love sorting out that problem.

    The rare time I come to this site the dumber and more idiotic the posts become.

  9. Gene Quinn April 24, 2017 1:55 pm

    Idiot (which seems like a good name for you)…

    Examiners who have not issued patents in years are unnecessary. It is really self evident for those who are not self proclaimed idiots like yourself. You see, examiners who have not issued patents in 2, 3, 4 or 5 years could be fired and there would be no production lost because they aren’t allowing anything anyway. Better yet, why not just hire a minimum wage worker and give them a “reject” stamp. That would save a lot of taxpayer money.

    You say: “The rare time I come to this site the dumber and more idiotic the posts become.”

    Please do us all a favor and don’t come back. Stupid commentary like yours really does nothing more than get in the way of thoughtful discussion. So if you are as ignorant as your comment suggests please do stay away.

    All the best!

    -Gene

  10. Bp April 24, 2017 2:41 pm

    Why should Art Units with a 9 per cent allowance rate be eliminated?

  11. Gene Quinn April 24, 2017 3:40 pm

    Bp-

    If you actually look at the statistics of the single digit allowance Art Units you will notice that on appeal they are overturned with great frequency, which means that their extraordinarily low allowance rates are unjustifiable when even a modicum of scrutiny is applied. These examiners use bogus rejections and game the system.

    See:

    http://www.ipwatchdog.com/2016/07/25/anatomy-bogus-alice-rejection/id=71192/

    http://www.ipwatchdog.com/2016/07/20/prosecution-reopened-examiners-stop-applicants-appealing/id=71087/

    http://www.ipwatchdog.com/2016/07/18/patent-examiners-frivolous-rejections/id=70999/

    http://www.ipwatchdog.com/2016/07/19/applicant-waiting-board-reverses-examiner/id=71017/

    http://www.ipwatchdog.com/2016/07/14/where-patent-applications-go-die/id=70913/

    Further, these Art Units are dominated by Fortune 500 companies. These are not applications of so-called patent trolls, or even independent inventors. They are for serious innovations with the patent applications written and prosecuted by some of the best patent attorneys and law firms in the country. If you look at what is actually happening there is simply not justification for a single digit allowance rate Art Unit.

    -Gene

  12. Wayne Carpenter April 24, 2017 3:58 pm

    From an inventor’s standpoint, I think that all Congressmen and other appropriate high level personnel in government including the Patent Office should read the comments at ipwatchdog.com concerning the deplorable patent situation so the problems will get fixed soon! The problems with the USPTO has been going on too long.

  13. Benjie April 24, 2017 11:11 pm

    English language competency issue is my hot button issue. Every single word I use in a claim matters and is intended to have a particular meaning. But the English language, as most languages, is a work of art. And there may be several ways to say the same thing. How can an Examiner with substandard English competency be expected to understand linguistic equivalencies and distinctions? It’s not like he’s reviewing data entry. Patents constitute one of the most difficult legal instruments to draw with accuracy. How can we leave their outcomes to someone without a command of the language it is written in?

  14. AAA JJ April 25, 2017 2:18 pm

    The dead weight at the PTO is not in the examining corps. It is in the platoons, squadrons, regiments, companies, battallions, divisions, and armies of useless, do nothing, know nothing, brain dead GS-15 QAS’s and SPRE’s and “business process specialists” and “subject matter experts” who do not examine any applications, but instead just get in the way of examination of cases. They get to tell the examiners, who may have actually read the application and the prior art and the applicant’s arguments, which you can bet the GS-15 has not, “Eh, looks too broad to me, go back and do some more searching and reject it” without ever having to sign their name to any action or answer to the applicant. They are the PTO’s “pencil test” enforcers. And they are the dead weight. Send them all back to examining. If they want to get paid GS-15 salaries, make them do GS-15 production.

  15. John Dale April 29, 2017 10:32 am

    For US utility patent applications, issued/granted/published why is there sometimes only one Primary Examiner and other times on other US utility patents there is a Primary Examiner and also an Assistant Examiner.
    Can somebody please explain why this is the case?

    Is it standard procedure for an applicant to always have the same USPTO Examiner reviewing a CIP and/or a RCE?

  16. AAA JJ May 1, 2017 1:32 pm

    Assistant, aka “junior,” examiners do not have the authority to allow an application. A primary examiner, who does have that authority, is required to “sign off” on any application being allowed by a junior examiner.

    It is SOP for RCE’s to be docketed to the same examiner. For CIP’s, it is possible that it will be assigned to a different examiner, but usually with CIP’s, and CON’s, the application is docketed to the examiner of the parent application.

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