Patent Law

Bad Apples

By Gary Odom and Jordan Kuhn

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.

Full post as published by The Patent Prospector on October 12, 2008 (boomark / email).