Clearing the record on quality
A recent Washington Post article concerning a GAO report on examination quality contained significant misstatements. Included was that the USPTO has “not tied bonuses and performance reviews to quality” and that examiners “are not rated for the quality of their work.” The article also mischaracterized the GAO report as finding that “[t]he U.S. Patent and Trademark Office is so focused on rewarding its employees for the number of applications they review that the quality of the patents they give out is in jeopardy.”[1] Consequently, it is necessary to correct the record with respect to examination quality.
First and foremost, the performance element of the patent examiner performance appraisal plan (PAP) gives equal weight (35%) to quality and production. Awards require at least fully successful performance in all critical elements, including quality. Defining quality for patent examination is a complicated task. There are 19 major quality activities in the examiner PAP and primary examiners are responsible for all 19 major activities.
In conjunction with the GAO report, over 3300 examiners were surveyed and almost 80% of those surveyed responded. 97% of patent examiners responded that patent quality is important to them. They also responded that patent quality is important at all levels of management. Examiners indicated that they felt as much or more pressure to issue high quality patents as they did to increase production or abide by docket management deadlines. In the six months prior to responding to the survey, 80% of respondents indicated that they averaged one or more hours of unpaid overtime per pay period.
The Washington Post article quotes the USPTO Chief Communications Officer, Patrick Ross, as saying “[w]e work very closely with our unions to determine the right amount of time to meet our goals.” It is true that POPA worked with and encouraged management to provide extra time for additional search burden in some areas resulting from the changeover to CPC. We also worked with management on changes to the examiner count system that resulted in a net gain of approximately one hour of examining time for utility examiners.
POPA has never agreed that existing production goals are adequate. We have continuously advocated for additional time for examiners working under production quotas that have otherwise not been updated since the 1970’s. In order to assist examiners who are most in need of additional time, POPA has asked management to study and determine the minimum time required for quality examination of a utility application.[2] Once such a level is identified, anyone with less time per balance disposal should have their goal raised accordingly. This isn’t the only adjustment to goals that is warranted, but rather identifies a minimum threshold of time that should be available to all utility examiners. POPA has never been satisfied that examiners have the right amount of time and as there are more quality and search demands being put on examiners than ever before, more time will be necessary for examiners to meet those demands.[3]
It is clear that quality is and always has been a critical part of the examination process. POPA will continue to seek increased examining time and resources as a necessary part of a quality examination.
Pamela R. Schwartz
[1] Washington Post article by Lisa Rein dated July 21, 2016.
[2] Design and Plant application goals would require separate analysis.
[3] Agency management has contacted POPA about looking at production credit and examination time to determine if changes are warranted. This process has just started and conclusions, if any, are not expected until 2017.