« Later Generation | Main | Not Extortion »

October 5, 2007


As pendency has ballooned, USPTO management has been pushing a crack-the-whip production system for examiners which has met stiff resistance from POPA, the examiner corps professional organization. Now the oversight GAO fingers the PTO for ignoring the burgeoning backlog in its hiring goals, and not adequately addressing examiner attrition: culprit #1 - production goals.

From the just-issued Government Accounting Office Report: "Hiring Efforts Are Not Sufficient to Reduce the Patent Application Backlog" -

In each of the last 5 years, USPTO primarily identified its projected annual hiring estimates on the basis of available funding levels and its institutional capacity to support additional staff and not on the existing backlog or the expected patent application workload. USPTO’s process for identifying its annual hiring estimates is generally consistent with accepted workforce planning strategies. Each year the agency determines how many new patent examiners it has the budget and supervisory and training capacity to hire. However, because this approach does not take into account how many examiners are needed to reduce the existing patent application backlog or address the inflow of new applications, it is unlikely that the agency will be able to reduce the growing backlog simply through its hiring efforts.

Although USPTO is hiring as many new patent examiners as its budget and institutional capacity will support, attrition is offsetting hiring progress, and agency management and patent examiners disagree about the causes for attrition. From 2002 through 2006, one patent examiner left USPTO for nearly every two the agency hired. This represents a significant loss to the agency because 70 percent of those who left had been at the agency for less than 5 years and new patent examiners are primarily responsible for the actions that remove applications from the backlog. According to USPTO management, patent examiners leave the agency primarily for personal reasons, such as the job not being a good fit or family reasons. In contrast, 67 percent of patent examiners identified the agency’s production goals as one of the primary reasons examiners may choose to leave USPTO. These production goals are based on the number of applications patent examiners must complete biweekly and have not been adjusted to reflect the complexity of patent applications since 1976. Moreover, 70 percent of patent examiners reported working unpaid overtime during the past year, in order to meet their production goals. Such a large percentage of patent examiners who are working extra time to meet their production goals and would choose to leave the agency because of these goals may be an indication that the production goals do not accurately reflect the time patent examiners need to review applications and is undermining USPTO’s hiring efforts.

The retention incentives and flexibilities provided by USPTO over the last 5 years generally align with the primary reasons identified by patent examiners for staying with the agency. Between 2002 and 2006, USPTO used a variety of retention flexibilities such as a special pay rate, performance bonuses, flexible work schedules, and a telework program to encourage patent examiners to stay with the agency. According to USPTO management the most effective retention efforts were those related to compensation and an enhanced work environment. GAO’s survey of patent examiners indicates that most patent examiners generally approved of USPTO’s retention efforts, and ranked the agency’s salary and other pay incentives as well as the flexible work schedule among the primary reasons for staying with the agency.

Posted by Patent Hawk at October 5, 2007 1:21 AM | The Patent Office


Recommendation for Executive Action:

"We recommend that the Secretary of Commerce direct the Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office to undertake a comprehensive evaluation of the assumptions that the agency uses to establish patent examiner production goals and revise those assumptions as appropriate."

Posted by: anonymous at October 5, 2007 1:40 AM

I find the report interesting, partially because I was one of the people that got the survey, and I had barely been working at the PTO for 4 months when I got it.

I like how the Agency says that it doesn't need to change anything because of all the rule changes they made shifting all the burden to applicants (and the claim numbering limitations).

The gist of the letter from the DoC responding to the GAO report seems to point to something that was posted on the 271 blog hinting that there were going to be major changes to examiner's expectancies (not in favor of the examiners).

The other thing I find almost shocking about this report is how it says almost the opposite of the GAO report from 2004 which said that examiner expectancies are too low because examiners are meeting them easily. What happened between 2004 and 2006?

Posted by: NewerExaminer at October 5, 2007 6:53 AM

This report is interesting, but I admit I have not fully read all 43 pages. But do I really need to?

It won't change anything. "70% of examiners report working unpaid OT to meet production." That's nice, but the facts are, 60+% of the examining corps is getting a bonus for doing 110+% production.

There's a disconnect. Examiners say they work unpaid OT "just to make production" but most of them are getting bonuses. Uhm, working "unpaid OT" is how most people in the real world get bonuses. Hello.

PTO (mis)management's position is very clear: They have essentially capped every app at 5/25 because no applicant is going to file an ESD, so there's no need to increase hrs/BD.

"We recommend that the Secretary of Commerce direct the Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office to undertake a comprehensive evaluation of the assumptions that the agency uses to establish patent examiner production goals and revise those assumptions as appropriate."

Just wait til that "comprehensive evaluation" concludes that there are some arts where hrs/BD can be cut! Wait til the "comprehensive evaluation" rips the lid off the dirty little secret in TC 1600 that their examiners only have to move one new case a month, and with gravy counts for all the phony divisionals they're generating and all the RCE's they're extorting from applicants (about to end 11/1/07), how easy it is to make production. Then you'll hear POPA scream.

Posted by: JD at October 5, 2007 7:39 AM

"What happened between 2004 and 2006?"

Perhaps someone outside the agency realized that the allowance error rate published by the USPTO is a complete and utter fiction, and that something has to be done about patent quality. (And that Quality=Time.)

Posted by: anonymous at October 5, 2007 8:23 AM

There is an interesting discussion at misc.int-property about the new regulations:


Posted by: MJC at October 9, 2007 3:06 AM

Hal Wegner's comment: "In the past five years, far more examiners have resigned from the examining corps than the size of the entire Japanese Patent Office. Even more disturbing is the fact that one out of every three examiner hires quits within one year of entry into service."

Posted by: Patent Hawk at October 13, 2007 6:31 PM