August 24, 2008
The Power of Arsy
Patent examiners have been getting a bad rap in the patent blogosphere. Insults attacking their competence, work ethic, intelligence, moral character, and English skills are flung. In moments of weakness, this author has occasionally chimed in. But examiner incompetence should not be so easily disparaged. It should instead be respected and appreciated as better than the alternative.
Most examiners, like most everyone, are randomly competent ("rc" or arsy). Those with competence tend not to stick around, opting, after a short stint, to become patent agents, attorneys, engineers, and sometimes lowly patent blog writers. If attrition rates truly are decreasing, as Dudas proclaims, even fewer competent examiners are being hired. Good!
What these examiners lack in competence: slow uptake, no nose to the grindstone, sputtering English fluency, they make up for in consistency, and, in time, experience. Over time, prosecutors develop relationships with career examiners. Their lack of competence is predictable, and over time they can be educated; as relationships develop, examiners often become easier to work with.
Career examiners are certainly easier to work with than a fledgling Joe Schmo, fresh off the patent-academy-boat, hell-bent on impressing his supervisor, and leaving the PTO just as you start to make progress with getting to allowance. When Joe Schmo leaves after his two-year stint, his caseload is then passed to another fresh fish, and the education process must begin anew.
So, give me Mr. Patent-examining-is-my-life's-work over Joe Schmo any day of the week - I'll take him, train him, and make the best of it. After all, it's an arsy world.
"Random competence" defines the Collective, the great mass of humanity - passable performance when everything is hunky dory, but prone to random acts of incompetence, particularly when operating out of routine. The cause is failure of comprehension and conceptualization, of not having a working mental model. Hence, randomly competent means generally incompetent, but okay at the easy stuff; at a glance, one may be fooled for a time. In other words, people are less than they seem, the rare exceptions to be cherished. The acronym for random competence is "rc", hence the adjectival nickname "arsy," as in, "well, that's arsy."
Posted by Mr. Platinum at August 24, 2008 6:28 AM | The Patent Office
examiner retention is a big problem and a large reason for the Patent Office backlog
Posted by: patent prosecutor at August 24, 2008 6:47 PM
"If attrition rates truly are decreasing, as Dudas proclaims, even fewer competent examiners are being hired. Good!"
Are you being facetious? I may be just a 'Joe Schmoe', but it seems to be in Applicants' best interest to have capable, competent examiners who quickly find and apply the best art, rather than the incompetent examiner conducting a poor search and allowing the case. Perhaps if the game is purely allowances and not legitimate patents...
And, is and your backronym 'arsy' intentionally similar to arse-y? That's mean.
Posted by: newExaminer at August 25, 2008 4:17 AM
Thanks for your comments.
I was not being facetious.
My argument is that there are two broad classes of examiners:
1) competent examiners who leave the patent office within two years and therefore never gain experience, and
2) arsy examiners who offer consistency, and, in time, experience.
Maybe we are better off with the latter.
"Perhaps if the game is purely allowances and not legitimate patents..."
Obviously the game is always to obtain valid patents. Just because an examiner is only randomly competent, does not necessarily lead to quick allowance. Rather, randomly competent examiners often fail to see allowable subject matter even when it bites them in the butt.
Posted by: Mr. Platinum at August 25, 2008 6:06 AM
even if they see allowable subject matter they are taught "reject, reject, reject"
there is no punishment for making poor rejections -- poor rejections only increase the backlog
Posted by: patent prosecutor at August 25, 2008 7:05 AM
You are right. You were not being "facetious". You are being condescending and offensive to all of the very competent examiners that DO stay at the office (I am not saying all that stay are competent, just that many that do stay are competent).
You state (not just imply, but state explicitly) that "Those with competence tend not to stick around, opting, after a short stint, to become patent agents, attorneys, engineers, and sometimes lowly patent blog writers." Not all people WANT to be attorney's and it seems that most attorney's can NOT get this through their heads.
It is not a question of "competence" but of many other things that influence many very competent people to stay at, or leave, the office. I dare say that there are many attorney's that would also fail your definition of "competent". Personally, I have seen some very poor examiners go out & be moderately successful as attorney's. That does not make one better or worse than the other. Just different.
And the constant degrading of anyone that deems to stay at the office more than a couple of years is not helpful to you or your compatriots in the bar. All it does is increase the already too-high level of antagonism that exists between examiners & attorney's. For every "bad examiner" story you all come up with, examiners can come up with a matching "bad attorney" story.
Now, please quit the B$ about "rc" & such & write something actually useful that can help improve the situation without insulting each other.
Posted by: Michael Valentine Smith at August 25, 2008 11:49 AM
Thanks for commenting.
Learn to read. And not read into what wasn't written. A little concept called comprehension with perspective. I’m talking competence, Michael.
"Those with competence tend not to stick around." Jordan, as a former examiner, thinks that a fair generalization. The attrition numbers seem to back it. There are always exceptions, as you noted. One can’t make a generalization without there being exceptions. That’s the nature of generalizations.
Oh, gee, did Jordan potentially offend competent examiners that stay at the PTO? How about let them chew his ass for themselves.
You say “It is not a question of "competence".” Some examiners may have, all things considered, a viable career path at the USPTO, regardless of competence. But, if you are competent, and don’t have other detriments, such as English not being your first language, you probably can have a more lucrative career outside the PTO. Hence the attrition. Not to mention that communication skills, such as English skill, in this country, are a very significant aspect of competence, for the germane careers here.
Your wrote: “I dare say that there are many attorney's that would also fail your definition of "competent".” You can’t start an argument with that. As Jordan wrote: “Most examiners, like most everyone, are randomly competent...” If you read court cases, surely you’ve come to the conclusion that some attorneys develop positions that are at least one sandwich short of a picnic. And what does that infer about the attorney...
The point of the post, which you seemed to miss, is that whining about incompetent examiners can be overdone. Better to have someone predictable, and who is going to be there throughout the prosecution, and hopefully the continuation, than Einstein, who is going to bolt as soon as he has his relativity theory polished.
Let’s face it, "Mr. Platinum" aspires to be an elitist snob. Like the name is no tip-off. He thinks he’s better than most. Uppity young punk that I have to work with day in and day out. I’m thankful for that. Because he is, not just better than most, but better than all but a few. If I knew who those other few were, I’d hire them.
Posted by: Patent Hawk at August 25, 2008 1:08 PM
As a current examiner, I can state that retention is still a big issue here. Although, Dudas might try to play with the numbers, it's hard to deny. When I started here four years ago, new examiners were on a one-year probation program. They would usually leave at the tail end of their first year. Now the agency has a two-year probation cycle and Dudas touts that first year attrition has dropped. However, having spoken to SPEs, the attrition has just been shuffled back a year to the tail-end of the second year.
It seems like every six to nine months, I take over the docket of some newbie that has left. (Most go into a purely technical area, not IP area). Unfortunately, I usually have to restart the clock for the applicants due to horrible art rejections or nonsensical arguments.
That's the one thing that has continued to amaze me. That the agency expects new examiners to learn from the back-and-forth between examiners and applicants. I understand the concept - you learn by doing. But it just chills me that newbies are expected to learn on the applicant's dime. "I'm sorry for the 18 months lost and three crappy actions, but my examiners are still learning their job."
Posted by: Examiner B at August 25, 2008 7:24 PM
I have to admit, I was a little confused with this post: "Patent examiners get trashed (so far so good), but they're randomly competent, only prosecutors can train them . . . blah blah . . . only career examiners are good, but thats only because I trained them" followed by this bizarre definition that could only have been written by a patent attorney (even though you aren't one).
The post was was so randomly competent that its really hard to respond to anything here. What is your point? People that do something their entire career will do their jobs better than someone in their second year? If people can double their salary by joining a law firm, they will? If you work with someone for their entire career, you will develop a relationship with them? Quick - alert the Pulitzer Prize committee!
"Rather, randomly competent examiners often fail to see allowable subject matter even when it bites them in the butt."
What the hell does this even mean? Allowable subject matter (i.e. "a claim") is not in the prior art (and complies with 101, 112, blah blah). Period. This comment reflects something I've seen way more than I ever expected coming to the Office, namely that it is the Examiner's responsibility to come up with this amorphous concept of an "invention." It's not. It's yours personally (when you are wearing your pro se cap) and you and your client working together (when you are wearing your prosecutor cap). Why? Congress said so. 112, paragraph 2. Patentable subject matter does not "bite you in the butt." It's not "oh, thats cool," or "oh, neat-o," or "ouch, my ass!" It's a feeling of "jeeze, I really cant find this one little piece" or "hmm, why did they do that."
Perhaps you meant the "story" of your invention (you're all about the story telling) as it's splayed across your spec. Well, whose job is that to decide what goes in the claims? How many times do you read on these websites (including this one) how examiners dont know a damn thing about the "business reasons" applicants do this or that, the legal consequences of doing this or that, blah blah. You can't have it both ways - its your job to write claims, not mine.
The patent attorneys I've butted heads with are in this "well, if I just tell you how its different, it should be good enough" mode. Well, its not . . . and it shouldn't. Stick it in the claim. Random competence can figure out what is in the claim and what isn't.
How about this: lets say 3 years from now (if it gets that far), Microsoft stands up in a Marshall, TX courtroom and says in closing "Ladies and gentlemen of the jury, you've seen our our wonderful Office products demonstrated over the course of this trial. Look at claim 1 of the '592 patent; it says . . . (laborious reading of claim 1). Yes, that's right. Nowhere does the plaintiff talk about that little paper-clip guy who asks you if you are trying to write a letter. Therefore, Office is different from the claims of this patent and we ask that you return a verdict of non-infringement."
I have a hunch that if your hired guns are worth their contingency fee, they'll have something clever to say in response to that. That's the kind of stuff we're dealing with as examiners. Routinely incompetent. (but of course I dont understand the nuances of the business reasons for making such an argument, so maybe its randomly brilliant).
Your post is indicative of a wistful longing for the "customer service" 90s. Did I say customer service? I meant rubber stamping. I think you're out of luck until you get that flux capacitor working . . .
PS - hasn't A.E. Neuman been given quite a workout? You missed a great opportunity to make the TNG-Borg/collective tie-in with your wacked out definition, a la the "WARF" posts. I want more posts about son of Moog (sp?) and battles with the batliff. This one just missed on all fronts.
Posted by: randomly competent at August 25, 2008 9:34 PM
From my internal perspective Mr. Platinum's argument does not seem to hold true.
He states that there are two broad classes of examiners. "(1) Competent examiners who leave the patent office within two years and therefore never gain experience."
From my limited experience, most of the examiners that bail early on don't leave because they are particularly competent and are heading up the patent foodchain. Most leave because they have an inherent problem understanding patent work(ie. they understand the technical side but are unable to grasp the legal side)or are unable to meet production requirements. They usually return to the technical arena. Those that do envision heading into IP usually stay at the agency for a longer period. Some stay for the experience, some stay in order to allow the PTO to pick up their law school tab.
"2) arsy examiners who offer consistency, and, in time, experience." I am unsure about the arsy comment but generally the longer one holds a position, the farther along the learning curve they will move. Therefore, an increase in consistency and experince would expected.
I will admit that I have met some totally incompetenet examiners that only survive by the grace of working in a federal agency where they are protected species and would be shot on sight out in the private sector.
However, I would agree between the two that I would prefer a more seasoned examiner that knows how to work within the system than some newbie.
I agree with Patent Hawk that generally one can have a more lucrative career on the outside. However, it depends upon how you weigh the job factors.
I have friends that work as attorneys in some fairly large firms. They make more money than me when measured on an annual basis. However, they also tend to work twice the number of hours, so I make more on a per hour basis. Plus, there are other perks. Working from home. Making my own schedule. Job security. Government benefits.
Plus, the more lucrative job really means that there is a higher potential for a lucrative job in the private sector. The more lucrative job is not a given. I'm only stating such as I have gotten the occasional email from a law school classmate that has been downsized out of his lucrative private sector job.
Posted by: Examiner B at August 26, 2008 4:16 AM
The real problem at the PTO is that the current PAP (performance appraisal plan) only rewards gaming the production system.
My experience as a practitioner for the past 9+ years is that the legal knowledge of the average examiner, from PTA newbie to grizzled primary to useless GS-15 do-nothing-dead-weight-whatever-acronym-describes-their-title is indeed random. However, it is very low across the spectrum. With some, their legal knowledge is zero, others it is barely minimally competent. As an average, though, it is woefully inadequate for a meaningful exchange between the examining corps and the patent bar. There are far too many examples of this to go into in any depth, but my favorites are application of boilerplate case law the examiner has never read, and will never read (despite the fact that I submit a copy of the case with my response), and the "non-enablement" rejections I see with ZERO analyis of the undue experimentation factors. The fact that the PTO is chock full of SPE's who will sign any piece of garbage that is put in front of them without reading it as long as nothing is indicated allowable greatly exacerbates the problem.
Yes, some are interested in being educated in the back and forth during prosecution. But again, in my experience, the number interested in being educated is perilously low. The vast, vast majority of examiners are far more interested in learning how to game the production system on their way to promotions and bonuses.
We are stuck with the current crop of thousands of examiners who've been hired since 2004 and been taught nothing except qaulity = reject, reject, reject. Unfortunately, not all of them left. A lot of them remain. Their re-education is going to be extremely painful. For them. But mostly for us.
Posted by: JD at August 26, 2008 7:36 AM