Posts Tagged: "Inspector General"

On August 31, 2016, the Office of the Inspector General (OIG) of the U.S. Department of Commerce (DOC) released a report titled Investigative Report on Analysis of Patent Examiners’ Time and Attendance, (the Report). The Report lacks a sound statistical basis for its conclusions and recommendations. It should be withdrawn and its errors corrected before further dissemination. Otherwise, the OIG’s credibility will be irreparably damaged and it will deserve not to be taken seriously by the public, the U.S. Patent & Trademark Office (PTO), or other DOC operating units.

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. 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. 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?

“My team and I do not tolerate time and attendance abuse,” Lee told the subcommittee. While she did note that the USPTO had taken disciplinary actions against examiners that have abused time and attendance reports, such actions ranging from counseling to expulsion and repayment for hours not worked, she added that there was evidence that instances of time and attendance abuse were not widespread. She cited a report on the USPTO’s telework program issued by the National Academy of Public Administration (NAPA) in July 2015. The report found that “It would appear to be unlikely that [time and attendance] abuse is widespread or unique to teleworkers, and it does not appear to reflect the actions of the workforce as a whole.” Additionally, the report indicated that the agency’s telework program saved the agency $7 million each year on average by allowing examiners to continue working in spite of government shutdowns caused by weather or other reasons.

More importantly, the OIG’s report misses the point. Nearly everyone agrees that the quality of patents being issued is a problem, but the OIG didn’t consider patent quality at all. The OIG’s proposed solution of forcing examiners to produce more quickly is hardly a recipe for quality, particularly when examiners report that they don’t currently have enough time to do a thorough job. In contrast, the Government Accountability Office recently issued two reports on improving patent quality. The GAO looked at internal procedures and surveyed examiners in order to identify some of the real causes of poor patent quality. The GAO had a number of important recommendations for improving patent quality; the distraction of this “fraud” may mean that we waste a real opportunity to make some positive changes.

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.

In a statement released late afternoon on Thursday, USPTO Chief Communications Office Todd Elmer explained that the USPTO “takes very seriously even one incidence of time and attendance abuse, such as by this particular employee, who is no longer with the agency.” Elmer went on to explain the initiatives put in place over the last year since this abuse occurred, which include a new agency wide policy for full-time teleworkers and supervisors.

According to the IG report, “Examiner A committed at least 730 hours of time and attendance abuse, resulting in the payment of approximately $25,500 for hours not worked in FY 2014 alone. The examiner in question also received extraordinarily low performance evaluations, receiving a reprimand for poor quality on nine (9) separate occasions. Rather than cooperate with the IG’s investigation Examiner A resigned and declined the opportunity to review and comment on the investigation findings. But this begs the essential question: Why was Examiner A still working for the Patent Office after nine (9) reprimands for unacceptably poor quality? It seems the USPTO is not equipped to identify abuse unless a whistleblower identifies a particular problem.

A fair treatment of the issue of patent quality would have necessarily considered those applicants that were wrongfully denied, as well as the extraordinary wait one must endure on appeal to the Patent Trial and Appeal Board to rectify examiner mistakes. Anything short of a fair and even-handed inquiry is not only inappropriate, but seems intended to lead to a conclusion that supports a preordained narrative. Sadly, this preordained narrative fits perfectly into the view of one side of the patent reform debate. With Congress considering patent reform in both the House and Senate the timing on the release of this one-sided report seems hardly coincidental.