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October 12, 2008

Bad Apples

Straight from the horse's mouth: "here at the USPTO, we got nothing but bad apples". Reflecting on end-of-year examiner performance ratings, USPTO upper management sputtered "that it wasn't possible that the agency had that many outstanding employees".

From the October POPA newsletter:

When USPTO Director Jon Dudas let the word out that too many employees receive outstanding ratings at end-of-year performance appraisals, one supervisor baselessly lowered a Patent Cooperation Treaty (PCT) special programs examiner's rating on one critical element, causing the employee to lose a significant portion of her Gainsharing Award. POPA filed a grievance on the employee's behalf that ultimately resulted in the invocation of binding arbitration on the issue.

At the hearing before Arbitrator Salvatore Arrigo, the supervisor testified that, sometime prior to the appraisal in question, USPTO management informed supervisors that too many employees were receiving outstanding ratings and "that it wasn't possible that the agency had that many outstanding employees," according to the arbitrator's written decision. When the employee asked the supervisor at the time of the appraisal for specific reasons for the lowered rating, the supervisor offered no other credible rationale.

After POPA filed the grievance on the employee's behalf, the agency stated that it relied on "several evaluations of training presentations" that the grievant had given. The USPTO presented six evaluations-two gave mixed reviews, three were critical (but only two were applicable to the grievant since there were multiple instructors and, in several instances, it could not be determined which instructor was being evaluated), and one gave the highest possible rating. Arbitrator Arrigo wrote, "given the small number of critical evaluations relied on and the fact that the grievant taught 200 to 300 students during [the performance appraisal period], I am unconvinced that [the supervisor] would reasonably rely on these student evaluations in reaching her conclusions on the grievant's performance."

Arrigo concluded that the special programs examiner would have received an "outstanding" rating if the supervisor had not caved to agency pressure to lower ratings. The arbitrator ordered that the rating be changed to outstanding and that the employee receive back pay of $2,458.16 plus interest. This corresponds to the higher rating point total of 500 points under the Gainsharing Agreement.

Manager Acknowledges Pressure from the Top

This is not the first time POPA has grieved Director Dudas's decision to lower employee ratings. When POPA representatives met with Office of the Chief Information Officer (OCIO) managers who appeared to arbitrarily down-rate several employees, one manager acknowledged that Director Dudas was seeking fewer outstanding performance ratings. Those grievances ultimately settled in the employees' favor, avoiding costly arbitrations.

Similarly in Technology Center 2800, POPA helped three primary examiners file grievances challenging unjustified lower ratings and had the ratings changed and applicable cash awards restored.

POPA has filed for employees at least five additional grievances contesting groundless low performance ratings, many of them in the OCIO. Some of these employees have decades of work experience, have won national awards or have performed work that has saved the USPTO hundreds of thousands of dollars. The outcome of these grievances is pending. These employees and POPA hope that the agency will recognize the error of its ways and discuss settlement of these grievances rather than forcing additional costly and time-consuming litigation.

From personal experience, the pressure on SPEs to lower performance ratings, below the rating deserved, is particularly high when evaluating probationary examiners with less than two years at the PTO. The flawed rationale being that a new examiner couldn't possibly be "that good" when they have so little experience. This of course ignores the fact that new examiners have more time to complete their work than PTO veterans, and also have more incentive to provide quality examination.

Luckily for Jon Dudas, no need to worry about his piss-poor examining corps, because, at least, examiners are on par with applicants who continue to flood the office with their crappy ideas.

Posted by Mr. Platinum at October 12, 2008 5:27 AM | The Patent Office


Hehh, that "it's not possible that the agency has that many outstanding employees" attitude seems to directly contradict Jon W. Dudas' response to Congress, where he discounted the studies that called into question the USPTO's 30-year old production goals by saying, "More important, neither study recognized that with nearly 6,000 talented scientists and engineers, there is no 'average patent examiner.' The key to establishing the optimal production goals is to be sure that the system allows for maximum flexibility and maximum opportunity for each
and every examiner. Examiners are intelligent and hard working."

The "W" is for worst, isn't it?


Posted by: NIPRA anonymous at October 12, 2008 4:37 PM

NIPRA anonymous hits the nail on the head. When he testified before Congress on what a great job the PTO was doing, Mr. Dudas remarked on how 60+% of the examining corps gets a bonus for exceeding their production requirements by 10+%. He's talking out of both sides of his mouth.

Their own website boasts of "record breaking" quality and quantity.

Meanwhile the (acknowledged) backlog is 760,000+ cases and pendency is 32+ months.

Complete double speak from these hacks.

Time for them, all of them, to go.

Posted by: JD at October 14, 2008 6:46 AM

For what it is worth, over the last 3-4 years, directors have also been told to lower the ratings of SPEs as too many were being given outstanding and commendable ratings. And this was during a period where, by upper management's own statements that quality & production were "at all time highs" and the PTO was meeting "all" it's goals.

Apparently the 2 John Ds just felt that there were too many high ratings being given out. They were NOT arguing that the ratings were not deserved. Just that there were "too many". Same warped logic as with lowering examiners ratings.
(I do know this for a fact as a good friend who was a director at the time (now retired) told me of this happening & the directors being told to lower the ratings of SPEs.)




JD, DO NOT start in on your usual rants against SPES, etc. I am not talking about if the ratings were justified to your standards or not. Just pointing out the same things is happening higher up the food chain.

Posted by: Lazarus Long at October 14, 2008 9:50 AM


Mr. Dudas is Jon. I'm John. Small difference.

Mr. Dudas is a politician. He knows the reality is that the quality over there is absolutely abysmal, but he tells his masters in Congress that quality is at an all time high. So approve my budge, pretty please.


The Director of the PTO should not be a politician.

And yes, the "quality" of the SPE's over there is also abysmal. That was a well known fact even before Mr. Dudas's unguarded moment.

"They were NOT arguing that the ratings were not deserved."

I don't know what Mr. Dudas was arguing, but I am arguing exactly that.

Posted by: JD at October 14, 2008 11:03 AM


You said "Mr. Dudas is Jon. I'm John. Small difference." ROFL!!!

I was not even thinking about you when I said about the "the 2 John Ds"! I was referencing the John (or Jon) D (udas & oll).
Of course, you apparently thinking that you were being referenced does say a lot about your own sense of self-importance. ;)

And, once again, you miss the point of my post even though I explicitly spelled it out for you in particular. My post was about the examiners AND SPEs being treated the same way for the same reasons. And both being "justified" by the 2 John Ds saying "there are too many" high ratings. Guess that just went over your head. Again.

And, yes the quality of SOME( not insignificant %) SPEs IS abysmal. Just like the quality of some (not insignificant %) of lawyers is abysmal. And some (not insignificant %) of both are very good. Now, get over it! That's life!!

Now, one thing that I DO agree with you is the the next (and subsequent) head of the PTO should not be another politician. It needs to be someone that is well versed in the patent system for prosecution (on both sides of the system) as well as technology & litigation. Now just find someone that meets those criteria & we will be set. And, of course, they will probably need to be of the "correct" party no matter which one wins. And I just hope, particularly if Obama wins, he doesn't do what Clinton did & just use the position to fill "quotas". Of course, McCain could always do like Bush did, as well.

Get the best qualified person no matter what their other "factors" (race, creed, gender, orientation, ethic origin, etc.) may be.

Now, getting back to the original subject, JD you never said if you thought that having upper management give orders to lower ratings because "there were too many" high ratings was reasonable justification, in and of itself, or not.

And, as you well know, ALL examiners could be doing outstanding work (not saying they are, but for the sake of this point let it go) and the backlog could well STILL be growing by leaps and bounds. The two are not directly related. Yes, there may be some indirect causal relation, but there is no guarantee that everyone doing outstanding quality & production will substantially effect the backlog. There are many other factors that will effect the backlog that have nothing to do with the examiner or examining (e.g., total filings, quality of filings, applicant's desires for broad claims, etc.). SO that argument you threw out there was a red herring.



Posted by: Lazarus Long at October 14, 2008 3:28 PM

"Now, getting back to the original subject, JD you never said if you thought that having upper management give orders to lower ratings because "there were too many" high ratings was reasonable justification, in and of itself, or not."

I have no opinion on that. And really couldn't care less what grounds PTO (mis)management uses to lower ratings. The fact of the matter is that the PTO is one big giant circle jerk with everybody sitting around telling each other what an outstanding job everybody is doing. So whatever mechanism is used to get the ratings to reflect reality is irrelevant, in my opinion, to the issue. The "quality" of work coming out of the PTO is abysmal. The ratings of the employees should reflect that.

The point of my post, which you missed, was that the current state of examination is absolutely horrible, despite what PTO (mis)management tells its masters in Congress. The fact that some useless, dead-weight, know-nothing GS-15's have been impacted by that reality is really just too bad.

No, my argument wasn't a red herring. Examiners are rewarded for doing a horrible job. And they are backed up by PTO (mis)management. Examiners know that they can issue atrociously bad final rejections, sit back, and wait for the RCE gravy train to pull into the station and take them to bonusville because the petitions and appeal process are so irreparably broken as to be useless to applicants. PTO (mis)management's "solution" to that problem is to make appeals even more onerous and expensive.

So yes, there is a direct causal relationship between "quality" and the backlog and pendency. But you can't see that because you're comfortably ensconced in your 23+ year old cocoon.

Posted by: JD at October 15, 2008 5:56 AM

LL said:

"I am not talking about if the ratings were justified to your standards or not. Just pointing out the same things is happening higher up the food chain."

Too bad it isn't happening to the parasites at the tippy-top of the food chain. Alas, our government will not survive much longer with a vacuum on top, so perhaps it's time to consider purchasing a Lottery Ticket Scraper so that "cyclic rise and fall of civilizations will be accelerated and society may look forward to the new rise of a civilization following the deterioration and destruction of such civilization as is presently enjoyed."


[The Background of the Invention is telling.]

Posted by: NIPRA anonymous at October 16, 2008 5:10 AM