Intellectual Property Law

Be Careful What you Wish For

The GAO issued a report this week whose title sums up its contents nicely: Hiring Efforts Are Not Sufficient to Reduce the Patent Application Backlog.

The Office, in response, issued a Press Release.

The GAO undertook this report in order to determine, for the last 5 years, (1) the USPTO's process for identifying its annual hiring estimates and the relationship of these hiring estimates to the patent application backlog; (2) the extent to which patent examiner hiring has been offset by attrition at USPTO, and what factors may contribute to patent examiners' decisions to leave the agency; and (3) the extent to which the retention incentives and flexibilities USPTO has implemented align with patent examiners' reasons for staying with the agency.

The Washington Post also commented on the report today.

The most important part of this report to examiners is the answer to question (2). The report makes the following points:

• Attrition is a Problem

  "Although USPTO hired 3,672 patent examiners from the beginning of fiscal year 2002 through fiscal year 2006, the patent examination workforce increased by only 1,644 because 2,028 patent examiners either left the agency or moved to other positions."

• The Loss of Newer Examiners is a Particular Problem

  "The attrition of patent examiners who were at the agency for less than 5 years is a significant loss for USPTO for a variety of reasons. First, because these less experienced patent examiners are primarily responsible for making the initial decision on patent applications, which is the triggering event that removes applications from the backlog, attrition of these staff affects USPTO?s ability to reduce the patent application backlog. Second, because patent examiners require 4 to 6 years of on-the-job experience before they become fully proficient in conducting patent application reviews, when these staff leave USPTO the agency loses as much as 5 years of training investment in them. Third, the continuous churning of so many new patent examiners makes the overall workforce less experienced."

• Management Thinks Examiners Leave for Personal Reasons

  "According to USPTO management, personal reasons are the primary reasons that cause patent examiners to leave the agency. Some of these reasons include the following:
  ? The nature of the work at USPTO does not fit with the preferred working styles of some patent examiners such as those with engineering degrees who are looking for more ?hands-on? experiences.
  ? Many patent examiners enter the workforce directly out of college and are looking to add USPTO to their résumés and move on to another job elsewhere rather than build a career at the agency, otherwise known as the ?millennial problem.?
  ? Patent examiners may choose to leave the area, as opposed to choosing to leave the agency, because their spouse transfers to a position outside of the Washington, D.C., area; the cost of living is too high; or the competition is too high for entry into the Washington, D.C., area graduate and postgraduate programs for those patent examiners who would like to pursue higher education."

  But...

• Current Examiners Would Leave the Office Due to the Stress of Production Requirements

  "According to our survey of patent examiners, 67 percent, regardless of their tenure with the agency, agree with union officials that the agency?s production goals are among the primary reasons they would consider leaving USPTO."

  "Furthermore, according to our survey, patent examiners are discontented with the actions they have to take in order to meet their production goals."

  "We estimated that because of the amount of unpaid overtime that they have to put into meeting their production goals, 59 percent of patent examiners consider it one of the primary reasons they would choose to leave USPTO, and 37 percent identified the amount of time they must work during paid leave to meet their production goals among the primary reasons they would leave the agency."

The report concludes that

"Despite its efforts to hire an increasing number of patent examiners annually and implement a number of retention incentives and flexibilities over the last 5 years, USPTO has had limited success in retaining new patent examiners. While many of the measures implemented generally align with the primary reasons that patent examiners would stay with the agency, these efforts have not been enough to prevent the agency from losing one patent examiner for nearly every two that it has hired, and especially troubling is the high loss of patent examiners who have been with the agency for less than 5 years. Although USPTO management does not agree, the root of this high level of attrition appears to be the stress resulting from the agency?s outdated production goals. To meet the agency?s production goals, most patent examiners, regardless of their tenure with the agency, have had to work unpaid overtime or work during paid leave time, and therefore consider this to be a primary reason for leaving USPTO. Because the production goals appear to be undermining USPTO?s efforts to hire and retain a highly qualified workforce, we believe the agency will continue to be limited in its ability to meet the increasing demand for U.S. patents and reduce the growth of the patent application backlog, and ultimately may be unable to fulfill its mission of ensuring U.S. competitiveness." (my emphasis.)

"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."

How did the Office respond?

"The Department of Commerce agreed with our findings, conclusions, and recommendation and agreed that the agency's hiring efforts are not sufficient to reduce the patent application backlog."

"[The USPTO] will reevaluate the assumptions used to establish patent examiner production goals."

So, to summarize, the GAO report recommended a review of production standards because the current standards are onerous enough that significant numbers of examiners, particularly new examiners who are chiefly responsible for reducing the backlog, are leaving the Office.

The Office agreed to review production standards.

And the Examining Corps rejoiced!

But wait a minute, not so fast.

A review of the Department of Commerce's response to the report reveals some rather ominous sounding language...

"The...initiatives being implemented and those under consideration by the USPTO will result in a more efficient and focused examination on the part of the patent examiner. It is anticipated that there will be efficiencies gained from these initiatives. Once the USPTO determines the effect of these initiatives on examiner productivity, we will reevaluate the assumptions that we use to establish production goals."

This is not necessarily a good thing.

Management agreed that reevaluating production standards would be a good idea. Nowhere in either the report or in the press release, do they agree that production standards should be reevaluated in order to help prevent examiner attrition (which would entail allowing examiners more time).

This means that a not-entirely-unlikely scenario would be for the Office to conclude that the efficiency gains from the new initiatives are so great that production standards should be increased.

This is scary stuff. I just hope that POPA has got our backs.

I actually do not disagree that with so many initiatives going on right now, it might not be the best time to try to reevaluate examiners' production standards. So much of the examination process is in the state of flux right now that any conclusions reached are very likely to be outdated in a matter of months.

Still, while the Office waits for their initiatives to come to fruition, the problems cited by the report (assuming that the report is correct) will continue to exacerbate the attrition, and consequently the backlog, problem.

Full post as published by Just a Patent Examiner on October 06, 2007 (boomark / email).