Patent Law

Asokkumar Pal v. Department of Commerce (Fed. Cir. 2008)(nonprecedential)

Pal was a quality assurance specialist at the USPTO. His job was to review patent examiner decisions and determine whether the examiner made any 'errors' in either rejecting or allowing claims. In 2005 and 2006, the PTO reviewed 16 randomly selected cases from Pal's file to determine whether he was properly reviewing examiner decisions. They found he was not making the correct decisions ? that he erred more than 35% of the time. (A 25% error rate would have been acceptable). Acting on the advice of Pal's supervisor and another SPE, Peggy Focarino decided to fire Pal. Focarino's decision was upheld by the Merit Systems Protection Board (MSPB). Pal then appealed to the Federal Circuit.

Standard of Review: The Federal Circuit has jurisdiction over MSPB appeals. Most MSPB appeals to the Federal Circuit are affirmed. This result can be explained by the "highly deferential standard of review" given to the board. The Federal Circuit will only overturn an MBPB decision that is "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." Factual determinations are only reviewed for "substantial evidence." Thus, "if the Board rests its decision on evidence that could lead a reasonable mind to reach the conclusion reached by the Board, we must accept the Board's decision.

On appeal, Pal argued that the PTO's judgment was faulty because it only looked at 16 cases in determining his error rate rather than his entire body of work (or his work spanning his probationary period). The Federal Circuit rejected that argument finding "no requirement that the agency must use any particular method for picking which work performed ? will be subject to test." In addition, Focarino did not err in discussing the case with a SPE who was familiar with the technology.

Mr. Pal had been with the Patent Office for 25 years and had received 22 "outstanding" performance evaluations and two "commendable" performance evaluations. His performance evaluation of "unacceptable" was his last and led to this cause of action. During his years, Mr. Pal trained junior examiners, taught the MPEP, and is a registered patent agent. The MSPB had noted that "it 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." However, the decision to fire an employee versus demote an employee is within the discretion of the PTO.

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.