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November 7, 2007

I Swear Tele-Works

Deputy Director of the USPTO, Margaret J.A. Peterlin, testified before a House of Representatives committee in a hearing entitled "Telework: Breaking New Ground."

From the patent office announcement:

The USPTO has long been recognized as a pioneer in the area of telework for its innovative and flexible programs.

Continuing from the announcement:

"The USPTO has demonstrated that telework is a business strategy that benefits our employees, our agency and the American economy. Our experience shows telework programs result in greater employee productivity, higher levels of sustained performance, reduced traffic congestion and air pollution, and reduced real estate costs," Deputy Under Secretary Peterlin explained. "Our motivated, high-performing employees have shown they can perform their responsibilities regardless of physical location."

Although the PTO continues to battle employee retention issues, telework lashes out with a blow to the heart of the enemy: employee dissatisfaction. Examiners appreciate and take advantage of the telework program, as evidenced by some pretty staggering statistics:

At the close of the 2007 fiscal year:

There were 3,609 USPTO employees participating in some form of telework, a roughly 59 percent increase over FY 2006. This number equals 40.7 percent of USPTO's total workforce and 45.7 percent of total eligible employees.

USPTO employees who telework collectively save more than 613,000 gallons of gas per year and save more than $1.8 million annually in fuel costs. Additionally, there is a combined reduction in emissions of more than 9,600 tons per year.

The USPTO has 17 formalized telework initiatives and 3 pilot programs in process, designed to serve the specific needs of 7 different business units. Participants in these programs telework from one day a week to four days a week.

The USPTO has a full-time telework coordinator on staff, and a dedicated Intranet Web site to provide information on telework opportunities to employees. Of particular note are the successes of the USPTO's two largest telework programs, the Trademark Work-at-Home Program and the Patent Hoteling Program.

A little about the patent telework program:

In 2006 a group of approximately 500 patent examiners participated in the Patent Hoteling Program (PHP). Similar to the Trademark program, the PHP is a flexible telecommuting program that provides participants the ability to access all relevant USPTO patent business systems, job performance tools, patent information and patent application documentation as efficiently at their remote worksite as on USPTO's Alexandria campus.

Today, more than 1,000 patent examiners participate in PHP. Earlier this year, PHP received the Excellence in Telework Leadership Award from the Telework Exchange, an honor specifically designated specifically for programs initiated within the last 12 months. Over the next several years, the USPTO expects to hire 1,200 new patent examiners a year, and by the end of FY 2011, it is expected that 3,000 patent examiners will be teleworking.

There are still a few, possibly unnecessary, restrictions placed on the telework program. First, examiners must reach a certain promotion level before teleworking. Additionally, examiners are required to trek into the office once a week, essentially limiting their telework locale to the DC metro area. Peterlin addresses the latter and lays out the PTO’s vision for the future:

In her testimony, Deputy Under Secretary Peterlin shared the agency's goal of achieving a national workforce model where some employees work full-time at headquarters, some telecommute one day a week, some hotel, and some live outside of the metropolitan area and rarely come to headquarters. By expanding the concept of an "office" in this way, the USPTO will leverage current technological capabilities to best serve its employees and the American public. This strategy will also allow the agency to hire the best and brightest employees from outside the Mid-Atlantic region, retain employees in a competitive market and minimize real estate costs associated with workforce expansion.

An aspect of telework not addressed relates to changes in examiner performance evaluation. Currently, examiner production is calculated based on the number of hours spent examining. “Examining time” excludes training, meetings, sick days, vacation days, etc. The USPTO is currently piloting a “flat goal” program which calculates examiner production based on a flat goal derived from average “examining time” throughout the office. Participants in the flat goal program are permitted to complete a portion of their work at home. In practice, many examiners participating in the flat goal pilot spend a majority of their time working from, returning to the office only for meetings and attorney interviews. Was this foreseen? Does the flat goal pilot primarily have teleworkers in mind? Is the flat goal pilot a way to provide employees ineligible for telework, a work-at-home option?

Should teleworkers be evaluated differently from in-office employees? I think this an important question that must be addressed as telework programs continue to expand; and let’s hope they do.

Posted by Mr. Platinum at November 7, 2007 1:52 PM | The Patent Office


A few comments from a current examiner.

The hoteling program which allows an examiner to work from a remote location, such as a home office, is currently restricted to GS-13 examiners. Depending at which GS level you started your employment, it will take an examiner between 5 to 2 years to reach a GS-13 level. The norm in my area is about 3.5 years.

There has been some grumbling among new recruits that they suffered a "bait and switch" during hiring. They were told prior to hiring that they would be eligible for the hoteling program once they completed their probationary period only to discover that such was not the case.

Management has since clarified their language. Examiners are eligible to sign up for the program upon completion of their probation period, but management reserves the right to deem which GS level is selected from the pool to hotel. They currently dictate that only GS-13 will be selected at this time.

The flat goal. This is a can of worms. As it has been explained to me by management, examiners and SPEs (their immediate supervisors) have their respective performances graded by different criteria.

Currently examiners are graded based upon how productive they are during the hours that they are examining patents. Time spent in interviews, training, sick leave, vacation time, etc. are all considered non-examing time and are subtracted from the hours used to judge productivity. .

However, upper management dictates to SPEs a flat goal that they expect from each examiner irrespective of the hours that each examiner spends examining patents. This number assumes that each examiner's examining hours constitute 80% of their workweek. No adjustments are made for interviews, training, sick leave, vacation time, etc. as the 80% is supposed to statistically integrate such non-examining time.

This creates a bit of a problem. An examiner could produce 110% and be satisfying their assigned metric of productivity versus hours, but still be underperforming based upon the flat goal assigned to them.

The flat goal was an attempt to push the flat goal given to SPEs another layer down in the organizational structure. I have heard from numerous SPEs that the flat goal program did not perform as desired, as now examiners were skirting job functions that they were not being given extra time to do, such as interviews, training and management meetings. Examiners explained that if their sole criteria was now a flat number of applications to process that they do not have time for activities that do not work toward that bottom line.

Posted by: Jason at November 7, 2007 5:29 PM

"Flatgoal" production is the worst idea that PTO management has probably ever came up with. When it was first advertised to us examiners, I ate up every thing they told me about it and signed up for the pilot almost immediately. See, I knew that I would be starting graduate classes in the future and thought that being on flatgoal would make the juggle of work and school easier.

Let me first tell you about my performance on the traditional production system. I started working for the PTO as a GS7-step 10 in 2005. I had the old 3.5 week training - I started before the new 8-month training was put into place - and my FIRST biweek out of training I produced at 122%. I picked up the job fairly easily and produced between 110%-120% (with about 20 hours of OT most biweeks once I got the 6 month accelerated promotion to GS9-step 7). I received my promotion to GS11-step 5 and started production at that level Quarter 1 of FY07 and worked on the traditional production system Quarters 1-2 of FY 2007 -- producing at 110%.

I went on the flatgoal pilot Quarter 3 of FY07 with every intention for it to work out well for me -- especially cuz I was to start grad school part time. I ended up working my tail off that quarter -- more than I had ever worked to pull off my usual 110%. I also compromised my workflow and "cherry-picked" through my cases (both amended and new) to get in my counts. I felt like a hamster in a wheel that kept running and running and just couldn't catch some treat that was hanging from a string in front of me. When Quarter 4 of FY07 started, I was doomed from the start because of how poorly I had managed my docket the previous quarter in an effort to maintain my production levels. I worked about 15-20 hours of VOLUNTARY OT every single bi-week during that quarter. I even PULLED ALL-NIGHTERS, which I had not done since college and was so stressed out about how un-fair the flatgoal really was that I got a very bad case of dry scalp. So bad that I had to go to the doctor to get a prescription for it! I finished Quarter 4 of FY07 barely over 80% and so unbelievably exhausted.

Needless to say, I am no longer on that pilot program. Oh and because I did so well on the traditional system the first two quarters of FY07, my overall production for the entire year still averaged out to be 105%. For my performance review, I received a “commendable” rating (order of performance goes: outstanding, commendable, fully successful, marginal and so on – marginal warrants written warning and potential termination of employment).

I am so relieved to be back on the traditional system. I have produced at 120% since the new FY started and have been getting more sleep. I also haven’t worked a single minute of voluntary OT and am hoping to see a promotion to the GS12 grade in January. I already told my SPE that if the PTO ever made any sort of flatgoal system “mandatory” – my two weeks notice would be on his desk the same day.

Posted by: examinethis2007 at November 8, 2007 7:10 AM

examinethis2007, can you explain why flat goal is bad in a more specific way? You were going to school and working? Wouldn't that naturally make things harder? Also, it seems like the 120% indicates your BDs should be reduced since it is so easy to produce this.

Posted by: mr question at November 8, 2007 10:00 AM

Well, let's hope other government agencies can follow the good example that the USPTO is setting for remote work, or Telework, as they call it. There are large economies of scale at work here, and plenty of potential saving and benefits for many of the parties involved. I cross-posted on your piece to http://blog.innovators-network.org The Innovators Network is a non-profit dedicated to bringing technology to startups, small businesses, non-profits, venture capitalists and intellectual property experts. Please visit us and help grow our community!

Best wishes for continued success,

Anthony Kuhn
Innovators Network

Posted by: Anthony Kuhn at November 8, 2007 2:52 PM

I did not start school until I had already been on flatgoal for over 1.5 quarters. Frankly, if I hadn't been able to get off, I would have to either quit the PTO or not go to school ---

As to your presumptious analysis of my production and my expectancy/BD -- I am just speechless. Is that how you expect organizations to treat their employees? "Oh, you can do the job well? No rewarding you for that, we're just going to make it harder and harder until you're barely squeeking by at 99%!" Jeesh.

My art unit has one of the worst attrition rates in the office and there are only a small number of us that perform over 100%. We have lost over 10 examiners in just two short years for a variety of reasons including personal, poor classification, horrible hours/BD expactancies and the very difficult technology. The hours/BD was established over 10 years before the technology even took off and over 50% of the subject matter I examine didn't exist in 1976. About 65% of the subject matter I examine has absolutely NO subclasses, making it even harder.

As to the specifics as to how and why the flatgoal is the worst idea ever -- check out examinethis2007.blogspot.com and over the next week or so, I'll detail it out for you.

Posted by: examinethis2007 at November 8, 2007 8:14 PM

examinethis2007, I know what you meant, but the average reader will likely have the same thoughts as my questions posed. Be careful with your explainations.

Mr Question

Posted by: mr question at November 8, 2007 8:29 PM

Hi examinethis2007,
Do you have any ideas on how to improve the system and reduce the backlog?
I was thinking perhaps the PTO could charge for billable hours like patent attorneys do. On starting examination they might estimate the time required to read the prior art, etc and estimate the cost to the applicant. This could be based on the size of the specification, number of claims, numbers of prior art references and could be known accurately beforehand.
Then applicants adding more work for the examiner would know how much they would be charged. More continuations, and large numbers of claims would be charged more for. The examiner would have that amount of time to complete the application, and if he did it in less time he might get bonuses, use that time on another application, etc.
Applicants would also expect the examiner to spend approximately that much time and would get a less hurried examination. They might also request a further block of time, and pay for e.g. 4 hours extra time spent.
Billable hours works for attorneys and solves most of the problems the PTO has. So it should work for the PTO as well.

Posted by: MJC at November 9, 2007 5:13 PM

"Then applicants adding more work for the examiner would know how much they would be charged. More continuations, and large numbers of claims would be charged more for. The examiner would have that amount of time to complete the application, and if he did it in less time he might get bonuses, use that time on another application, etc."

This doesn't make sense to me--applicants would pay more for the privilege of getting more examiner time, but then the examiner would be given an incentive not to spend the time that applicant was paying for?

Posted by: Examiner Y at November 11, 2007 2:16 PM

Hi examiner Y,
The examiner could have some incentives to use less time than the applicant has paid for. If this results in the applicant not being satisfied then he can appeal or request the examiner spends more time on the application.
For example say the applicant initially pays for 4 hours in a filing fee to process the application. I don't know what the average time spent on a patent is, 4 hours is just an example. Say the application is fairly simple with little prior art, then the examiner might finish it in 3 hours and have a 1 hour bonus. This might translate into a number of bonus hours for a month and extra money. For example if an examiner saved 10 hours for a month the applicant had paid for he might get an extra $200.
If the applicant is happy then there is no problem. If they are not happy with the work then they might appeal to find out how much time was spent on the application and request more time on it. So then the extra hour the examiner had saved is used up on the application. If the examiner was rushing the job then complaints from the applicant would make him lose some of the bonus hours he had saved. I'm not suggesting the examiner lies about the time spent, the rules would be that the examiner can do the job in less time as long as the applicant doesn't appeal.
So rushing the examination too much will backfire because the applicant will complain and request the saved time to do the job properly. This is similar to a patent attorney estimating 4 hours to write a specification and doing it in 3 hours, but still charging for 4 hours. If the applicant is happy with the specification there is no problem. If not then he might demand the extra time he paid for to improve it.
So the idea is for market forces to both urge the examiner to work faster and save time for bonuses, and the applicant to complain if necessary for the examiner to spend more time. This would make the examiner work faster but also avoid doing a poor job.
Also this gives an incentive for the applicant and his attorney to avoid wasting the examiner's time. If the specification is poorly written and the prior art references incomplete or confusing then the examiner must spend more time understanding it and doing searches. If there are too many claims or they are claiming too much then the examiner again has to spend extra time, and charge the applicant more money.
So this extra time has to be paid for with the first office action, plus an estimate of the number of hours still necessary to finish the examination. This is the same as an attorney charging a client more for wasting his time with poor preparation. So the applicant and attorney would tend to make the examiner's job easier and faster to save themselves money.
If the applicant believes the examiner is requesting too much time to complete the application then he might appeal and this could be compared against other similar application, or the file wrapper examined for time spent. If the examiner was trying to add hours onto the application then this would be apparent. For example if he put down 2 hours to read a few prior art references then this would be appealed.
This is to stop the examiner saying for example that he needed 6 hours to finish the application, charge the applicant for this and then finish in 4 hours and getting 2 bonus hours for himself. If the applicant was happy he might not appeal and so the examiner still has an incentive to work faster than the time he quoted. If the applicant is unhappy then the examiner can avoid this by doing a good job, and not lose his bonus hours.
There would always be some examiners adding unnecessary hours and taking too long, and then the applicant pays too much. Often though he is already paying extra for RCEs anyway. The extra time will normally make for a better job and the examiner would not be rushed unless he was trying to get bonuses.
There would also be some examiners who cut too many corners to get time bonuses, but the applicant complaints would tend to reduce this. Perhaps the examiner could incur a time penalty if the applicant won the appeal.
One advantage of this system is it is basically the same as patent attorneys use successfully now. They charge for time, and sometimes finish the job quicker. The client doesn't mind if the job is done well.

Posted by: MJC at November 12, 2007 4:41 PM