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The federal government has an outdated civil service system that simply fails to hire the best, brightest, and most qualified employees.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:
- 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.
- 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.
- 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.
- 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.