Patent Examiners Flee USPTO

john-da-luthrun writes "Soaring numbers of patent applications for software and business processes is not only leading to the ludicrous patents for the likes of Amazon and Microsoft. The stress of dealing with vast numbers of applications is leading to an exodus of patent examiners from the USPTO, reports FCW.com. A US Government Accountability Office report (PDF) says that the USPTO has made progress in hiring examiners, 'but challenges to retention remain'. The IP Kat blog quotes Jason Schulz of the EFF, who comments that 'The incredible surge of patent applications, especially in the software and internet business method arena, is just crushing them, and the management problems are rising to the surface with greater visibility for those reasons. Where anything under the sun is patentable, it puts an unbelievable amount of pressure on the patent office'."

Comments

They have quotas.

[Bill Barth]

Examiners are on a quota system.

Re:They have quotas.

[mavenguy]

These are entry level slots; the GS-1225 series (Utility Patent Examiner) defines the following GS Grade levels, all non-supervisory: 5, 7, 9, 11, 12, 13, 14, 15. The levels above 9 are filled via promotion.

After 6 months at the GS-13 level, an examiner can go on a special trial "Partial Signatory Authority" (PSA) program for 6 months during which they can sign some preliminary actions, but not final actions or allowances. The work is evaluated by several supervisors, and if passed, they get the PSA permanently.

After 6 months as a permanent PSA the examiner can go on to a trial Full Signatory Authority (FSA) program similar to the PSA trial, but now with the authority to sign most actions in a case, including final rejections, Examiner's Answers on Appeal, and Allowances. After 6 months the work is again evaluated similarly to the PSA evaluation (but with emphasis on the dtuff only FSAs can sign) and, if passed, FSA is permanently granted. Along with this, the examiner also qualifies for promotion to the GS-14 level. This is considered the "journeyman" level for an examiner.

The GS-15 level can be attained (or at least it used to be attained) by qualifying as a "Senior" or "Expert" examiner. There are (or at least were) relatively few of these since management keeps the totals down and because production requirements increase with these designations.

Not mentioned in the offical position descriptions, but part of the Performance Appraisal Plan (PAP) are the production quotas. These are assigned to each art area and are normalized for an examiner at a GS-12. The production "goal" (95% is the minimum for a "fully successful" rating) is normalized for each grade level and authority: GS-5 - 0.6, GS-7 - 0.7, GS-9 - 0.8, GS-11 - 0.9, GS-12 - 1.0, GS-13 - 1.1, GS - 13(PSA) - 1.25, GS-14 - 1.35, GS-15 - 1.45. These are all from memory, might not be exact, but it should give you an idea of how it works.

Re:The solution!

[AKAImBatman]

I've been dying for someone to "hack" the patent system and using different words patent the same idea twice (or have two people approved for the same idea).

That exact thing happened with the LZW algorithm used in GIF files. Both Unisys and IBM ended up with patents, but only Unisys tried to enforce them.

This won't change

[bezuwork's friend]

Face it folks, the USPTO is fucked up.

I am a past examiner and I can tell you that every examiner has production quotas. Their bosses (called supervisory patent examiners) get bonuses if all their people do over set amounts (e.g. up to 110% of quota), so some bosses really ratchet up the pressure. The guy that hired me even made me orally agree to do 110% of quota before hiring me.

Additionally, though, the bosses get alot of power. In training we were told to do things one way, but if our bosses wanted the opposite, we were to do that instead. Some bosses are great, to the point that people even have second jobs (maybe not now, but some did when I was there) and goof off at the USPTO, getting their quotas on one or two days work. Other bosses are from hell and get very personal on people, refusing to sign off on their work and requiring them to redo things time and again. There is NO way to meet quota when your boss refuses to sign off on your work, at least until you reach primary examiner status. People in such situations generally had no recourse, especially as the bosses could prevent transfer requests, so the people were forced to leave or be fired. And upper management had a "hands off" policy so no help there.

I literally know of dozens of good examiners who were forced out by recalcitrant bosses, including several primaries.

On the other hand, if you have a good boss and get into a schedule where you can get your work done in less than 40 hours a week, the USPTO can be very difficult to leave.

It is very obvious that the USPTO management doesn't care about examiner attrition. If they did, they would have figured out safeguards against it long ago. But why should they? After all, there are always people wanting jobs there, if not birth Americans, then all the Vietnamese, Indians, and Ethiopians who have gotten their citizenships. And it's not like the companies are going to go away - no matter how long it takes to get a patent, there is only one source for patents. And congress can't do much - the USPTO is self-funded, congress can't force the USPTO to improve beyond what they are doing without more money, and congress isn't about to supply that. So I think the system is stuck without some enlightened new management.

Re:This won't change

[mavenguy]

Production (quota) is measured in units of "Hours per balanced disposal" Hours are "Examining" hours, the amount of time the examiner works, minus certain "non-examining time". Over the years management has been reducing the amount of non-examining time available to examiners to force up production.

"Balanced disposals" is a figure derived by counting, during any given time period,

1) the number of first actions on the merits (like rejections, allowances, but not including things like restrictions or minor, technical things), and

2) the number of disposals, meaning allowances, abandonments, and the first Examiner's Answer on Appeal in a case, then

3) dividing the sum of 1) and 2) by 2, in other words, an average of the first actions and disposals. Using this average to divide into the number of hours in the time period gives the production for that time period. Typical time periods are a biweek, a quarter, or a fiscal year, although some other time periods may be selected for special purposes.

Production goal achievement for a time period is expressed as the goal/actual x 100 (a percentage). The goal is assigned based on the specific art(s) assigned to the examiner and the examiner's grade and authority grant (Partial or Full Signatory, Senior or Expert designation). Under the the current Performance Appraisal Plan, anything below 95% is considered either "Marginal" or (less than 90%) Unsatisfactory. Examiners who don't get their production up are fired.

One thing to note in this scheme: The incentive is to issue an application on the first action; two "counts" and no additional time to inflate the Hours/balanced disposal. On the other hand sening out rejection after rejection just keeps consuming time, for which the examiner only gets the first action count"; to get the disposal count, the application must either be issued, the applicant gives up, or files a continuing case to keep going (the original application goes abandoned to generate the disposal count), or the applicant appeals, the examiner getting the disposal when the Answer is filed, but before the case is decided by the Board. And, if the the Board decision is a reversal, the examiner has to prepare it for issue, but doesn't get a disposal, since that was given when the Answer was filed.

The system was designed back in the 1960's to cut down on pendency and discourage examiners to keep making rejection after rejection (after 2 rejections the applicant always has the right to appeal)

There is corruption in other areas, too.

[Futurepower(R)]

Those who want corruption want stupid patents so they can scare others away from working in their area of technology. They don't care if they sometimes lose a few court cases due to stupidly weak patents. In general, taking something to court is so expensive that the corrupters win just because of the threat.

A major way those who want corruption destroy government effectiveness is by starving the agencies of operating funds. That's what happened to the patent office. The corrupters won't allow hiring of enough people to do the job well.

For a discussion of starving the SEC (U.S. Securities and Exchange Commission, regulates the stock exchange), see this article: Keeping the SEC on a Starvation Diet. The corrupters don't want their stock manipulations discovered. They want more of this: Enron fraud, this: WorldCom fraud and this: Tyco fraud.

They are corrupting the IRS (U.S. Internal Revenue Service, collects taxes), too. The corrupters definitely do NOT want their tax returns to be audited, so they arrange that there is not enough money for audits: Bush Request for IRS Not Enough, Report Says

They are corrupting the courts. Those who want corruption spend huge amounts to get lazy judges elected, and work for the defeat of judges who do a good job.

Another major way that corruption of the courts is accomplished by not giving the courts enough money to operate. A 2003-06-24 op-ed article by Charles Williamson, then president of the Oregon State Bar, in The Oregonian, the Northwest's largest newspaper, said, "The crippling loss of nearly one-third of their staff have left our courts unable to hear criminal cases such as car theft, shoplifting, prostitution, fraud and identity theft."

The Bush administration has been appointing heads of government agencies who reduce the role of those agencies. After they destroy the effectiveness of the agencies, they go back to running their businesses, and the corruption gives them more profit.

The book Other People's Money discusses corporate corruption. It's excellent. Secrets and Lies: Operation "Iraqi Freedom" and After: A Prelude to the Fall of U.S. Power in the Middle East?, by Dilip Hiro is an excellent book about the corruption that led to the most recent U.S.-Iraq war.

The corruption is extremely widespread. The books mentioned above and the 3 movies and 34 books reviewed in this article are not enough to tell the story: Unprecedented Corruption: A guide to conflict of interest in the U.S. government.

In general, most Americans don't want to know how corrupt their government has become. Most don't read books. The TV news they watch is heavily influenced by the corrupters. For example, GE, one of the largest sellers of weapons, owns NBC, one of the major ways Americans get their news.

Re:Raise their salary!

[sickofthisshit]

Einstein didn't work on the Manhattan project.

However, the OP's suggesting Hans Bethe, Richard Feynman, Enrico Fermi, etc., etc., were not among the best physicists in America is pretty stupid.

Practically anyone of equal or greater talent in America who wasn't working on the Manhattan project was working on radar projects for the U.S. government.

The Manhattan project was an instance of the U.S. goverment getting the smartest people they could, writing them a blank check, and staying the hell out of their way.

Re:Trade secrets???

[It doesn't come easy]

Heh, nothing like learning something new. I've been reading up on it and I think what I've seen in the past is a note in a patent pending where something is not shown because of the trade secret claim. Here is the explanation I found on one site under "Comparing patents and trade secrets":

"If the only patent being sought is a United States patent, then the decision to give up trade secrets to obtain a patent is not, at present, an irreversible one. The reason for this is that a U.S. patent application is kept secret by the U.S. Patent Office until such time as a patent issues. At any point prior to payment of the issue fee, an applicant could is permitted to abandon the patent application, in which case it would remain secret thereafter.

One should keep in mind, however, that the U.S. Patent Office has announced its plans to start a program of publishing patent applications 18 months after filing, thus coming into harmony with the majority of countries having patent systems. This change, if implemented, puts the U.S. applicant in the same position as applicants in other countries, having to make a decision whether to seek a patent or rely on trade secret protection.

At such time as the patent issues, it reveals to the public any and all trade secrets that are contained within it.[...]"

So, you are right that once the patent is issued, the trade secret status would be lost. However, it's also true (at least for the moment) that the trade secret status must be preserved until the patent is issued, at least in the US. (this description, by the way, is from 1993, so it may already be out of date.)

Re:Can the exodus be attributed to the deluge?

[DoctorPhil]

You are completely wrong. I am a patent examiner. Patent examiners are under continual pressure to approve patents. We all have quotas, set by our payscale and by the area in which we work, and failure to meet the quotas results in being fired. Also, failing to respond to an amendment in time can result in being fired, even if you have been 30% over quota up till now and then three amendments land on your desk in one week that are all due because they were delayed somewhere else along the way. There is no lack of upward mobility - patent examiners can move up all the way to GS-13, I believe, without any competition.