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December 17, 2008

Tossed

Asokkumar Pal looked away from the screen and wiped his eyes. He was tired. He'd been with the agency 25 years. A long haul. Now it had crumbled away, as if he was a wad of paper, to be used and tossed. It wasn't right. He did the best he could. His resolve stiffened. He would not go quietly.

Pal v. Dept. of Commerce (CAFC 2008-3213) non-precedential

It was a long way down. Twenty-two "outstanding" performance evaluations. Two "commendable". Now only the last one mattered: "unacceptable."

Pal had trained examiners, taught the bible, MPEP, and knew the important bits by heart. A registered patent agent. The qualifications didn't matter.

The end of the line was at a pinnacle of quality assurance: reviewing and grading examiners' work. Put on probation in 2005. Then they picked 16 cases, a smattering, to find fault with. Six errors. 37.5%. Unacceptable. Others had slid by with a 50% error rate. But Pal: canned. By a woman who couldn't even understand the technology. They even misapplied the law. Pal gnashed his teeth.

Pal took it to the Patent Office review board. They just played the tiniest violin they had: sympathy.

[I]t is extremely unfortunate that the agency could not have found another position for the Appellant, who seems to have many talents and has been a successful Federal employee for most of his lengthy career.

Tell it to the judge. As if they cared. With their "highly deferential standard of review." The Court of Appeals didn't play armchair quarterback to the government, they ruled. Not unless they wanted to, Pal mused. Rigged. But not for Pal.

Posted by Patent Hawk at December 17, 2008 3:06 PM | The Patent Office

Comments

Patent Hawk,

You missed a juicy tidbit:

"In his brief, Mr. Pal argued that other similarly situated employees had mistake rates "as high as 45-50 percent" that "were never rated unacceptable." That argument was not addressed by the Federal Circuit."
- from our neighborly Patently-O blog.

Mistake rates as high as 45-50 percent. Hmm, how does that fit into the USPTO metrics?

Posted by: breadcrumbs at December 17, 2008 3:57 PM

breadcrumbs,

Thanks. I squeezed a bit more juice into the tidbit.

Posted by: Patent Hawk at December 17, 2008 4:33 PM

I don't know Mr. Pal or his situation. I do know (based on anecdotal evidence) that it is not uncommon for managers to be arbitrary about who they go after to fire. However, it is also possible and has been possible to obtain outstanding ratings without being particularly competent in your job, since these ratings are handed out to Examiners based primarily on exceeding production quota.

This is why it so important for Examiners to have effective union representation. The examiner's union (POPA [http://www.popa.org]) needs to have the resources to review each firing and ensure that firings are not arbitrary within the organization.

Posted by: Defector at December 18, 2008 5:53 PM

...and how did POPA perform for Pal?

Posted by: breadcrumbs at December 18, 2008 8:51 PM

Mr. Pal is in OPQA (Office of Patent Quality Assurance, or whatever it stands for, most people at the PTO refer to it as "QR"). He is not in the POPA bargaining unit.

This represents a problem for many at the PTO. They have been GS-14 primaries for years, are burned out on production, bored out of their minds, and they see these uselessdonothingknownothingdeadweightGS-15 positions (SPE, SPRE, TQAS, RQAS, uselessasshole, etc.) that have no production requirements (well OPQA examiners have production goals, but not like regular examiners, and get to at least see different technology than what they've been examining for years), and they figure, "Well, I'll get a raise and I don't have to do production anymore."

They then find out that they don't have the security of POPA, the guaranteed bonus for pumping out shoddy 1.5 page OA's that reject everything using some combination of inherency, Official Notice, inapposite boilerplate case law, garbage "design choice" motivation, and they whine like babies. Top it off with being subjected to being sh!t canned for totally arbitrary and capricious reasons, despite your glowing "outstanding" ratings for 20+ years, and it's a wonder the PTO can get anybody to take these jobs.

But they do.

Posted by: JD at December 19, 2008 8:50 AM

Thanks JD,

And the Office still wants to waste time on power grabbing exercises with its house in such dis-array.

It just seems criminal!

Posted by: Noise above Law at December 19, 2008 9:05 AM

Hawk

With 3 words you very subtly pointed a veiled finger at the source of much of the PTO's problems:
"By a woman"

My guess is that at least half of the PTO's dumb decisions are made by women.

Posted by: Pahoo-Ka-Ta-Wah at December 19, 2008 10:19 AM