(sender deleted)
!19990128 A few patent examiners complain about patent quality
The patent examiners' union has a Web page, part of which includes an
area where they can anonymously post comments on anything. What follows
are some recent complaints about the decreasing quality of patents, and
concerns about the mismanglement (a neat insult word one of the examiners
used) of Internet patent applications.
Admittedly a small biased sample, but probably as meaningful as some
of the comments I hear through the press that PTO management is making
along the lines that nothing is wrong. Let me make a comment about one
bit of wisdom I have heard - hiring 700 new software examiners is about
as useful as hiring 700 new firefighters without buying 700 new hoses.
Unless the firefighters drank a lot of beer the night before, they won't
be able to help put out the fires any quicker.
The last item below was a missive sent to me by an ex-examiner - a
bunch of complaints, but a few comments favorable to the new Acting
commissioner.
====================
DECREASING PATENT QUALITY
I have been an examiner for only 6 years and in that time I have noted
a very marked decrease in the quality of patents issued. When I first
started here I was told 'When in doubt reject' and to try to reject. Now I
am told 'When in doubt allow' and try to find a reason to allow. I used to
do interference searches until my SPE said to me 'You don't really do that
do you? He also told me 'don't waste your time'.
I have watched as the amount of art we are required to search has more
than quadrupled yet the BD's has remained the same. Finally I have watched
as the quality and speed of the search tools have sharply decreased. When I
first started here we had those low quality dual screen terminals. They were
barely adequate. Next we took a step down to the Dual boot workstations
which were slower and required more searchtime. Then we were forced to
IS& and STN Express which again was a step down. Now they want us to use
that WEST (Waste of Examiners Search Time) search tool.
All of the above clearly indicates one thing. That the office wants to
go to a registration system since quality means nothing. So why haven't we
officially become a registration system?
==========
FUEL TO THE FIRE
Yeah. You know what? I'm sick of finding ridiculous patents every time
I look in my shoes. Part of the blame goes to the patent corps. We just
don't fight hard enough against the bull ---- being shoveled by upper
management. And of course, that is where the rest of the blame goes.
It's a system that's burning up, and management just keeps adding fuel to
the fire.
And why should you care? Hey, management pays you for good patents or
bad, right? In fact, they pay you more for doing less. Why should you fight
with management. Why reject?
If we don't reject patent applications, we are not necessary.
No one needs the kinds of salaries we get to put a stamp on a bunch of
paperwork sent in by our attorney. Every examiner who becomes an allowance
hound hurts all of us. Our allowance rate is too high to begin with. What
is it according to official numbers? 70% ? 80% ? You know what? Whatever
number they give, it's higher. They count an abandonment as not allowed,
whether or not it becomes a patent in a continuation.
What is wrong with an 80% allowance rate? Well, when companies we deal
with see such a high rate of issue, they file on ever smaller 'inventions'.
If their competitors are getting patents 4 out of 5 times they knock on our
door, then they better get in the game too, whether or not they have any
talent on their engineering staff. The patent applications themselves become
even more worthy of being rejected. Do we reject more? No. We have a
cultural goal now. If some examiner is not issuing enough, his SPE will
complain and make her or him feel like s/he's a weirdo anal retentive tight
butt. That all the other examiners are issuing loads, so s/he must be
unfair. The examiner wonders why s/he is working so hard. The Examiner
wonders why s/he draws complaints from the boss, and bitter fusillades from
attorneys who are used to slam dunks, not rejection.
An 70-80% allowance rate erodes our standards. It's a cultural disease.
If we erode our standards much further, we may become dispensable.
Remember, Congress still passes laws every year. Sometimes, they change laws.
Why SHOULD anyone pay our salary, if we don't reject all that much?
I think examiners need to start exerting pressure on upper management
to reform the culture of allowance. We have to press to be rewarded for
good work, regardless of whether the patent application becomes a patent
or not. I personally want to be rewarded for becoming a patent subversive.
Management needs to reward us MORE, not less, for rejecting a patent
application, because it involves MORE WORK.
What are the benefits of working really hard to find the most relevant
art, and studying it to determine whether each and every claim defines over
it, vs. taking a 'when in doubt, allow' type of attitude, and not going the
extra mile.
When in doubt, allow higher production.
Better ratings every quarter.
Boss gets higher rewards and praise from group director.
Greater promotion potential.
More free time at work for talking to friends.
No voluntary overtime.
Can get a count on second action, rather than waiting 6-12 months.
Fewer Examiner's Answers to write.
Fewer complaints from attorneys.
Fewer irate inventors.
Search more, try harder:
* Lower production.
* Lower bonuses. Watch friends spend their $5,000 bonus on Jacuzzi.
Maybe they will invite you over.
* Work weekends for free. Less time with family.
* Make coworkers nervous that you will expose their laziness.
* Get abandonments. Randomly, and much later.
* Get to practice verbal skills writing Examiner's Answers.
* Number of 'actions per disposal' goes up.
You get the picture.
This needs to be made clear to more people. The Patent Office is heavily
biased towards rewarding examiners who allow a lot, and it is creating a
culture to match. Unfortunately, our 'customers' are collectively paying
the higher costs of confusion and legal help to sort the whole mess out.
==========
RE: DECREASING PATENT QUALITY
A really good example of declining quality is the PTO's response to the
Internet revolution. In my estimation, there has been no coordinated effort
to deal with the flood of patent applications for Internet related subject
matter. Combine this with the recent decisions to formally allow patents
on methods of doing business, and there is a recipe for a boondoggle.
Everyone is applying for Internet patents all at once, and applications
are going almost randomly to different art units because there is no central
home for them, and because classification is a shambles. One examiner doesn't
know what the other examiner is issuing.
Cold fusion got a fairly quick response. Nuclear devices got a home.
High temperature semiconductors got a quick response. Fiber optics
eventually found a home. AIDS seems to be the last development that anyone
took seriously. The PTO is way too slow on the Internet. There are no
official policy statements. The current staff members in upper manglement
just don't seem to be competent enough to know that they have to take these
developments by the horns.
==========
BD's: NOTHING NEW UNDER THE SUN
I was saddened after reading the 'PTO Pulse' Q & A article where a
question pertaining to BD relief was summarily dissmissed. The examiner
was concerned about re-evaluation of BD hours. The questioner stated it
had not been done since the 70's, and his/her search had 'doubled' since
then.
Management's response basically stated that almost everyone produces
over 110%, the quality as measured over previous years has not diminished,
and some type of structure is already in place to deal with this situation
on an art related basis. Therefore, there is no problem.
HA! In my art, everything from the 70's (and most of the 80's stuff) is
contained in the FIRST shoe of each subclass! In the six years I've been
here, the shoe volume per subclass has AT LEAST doubled. Sure, I still do
110%, but my browsing time is reduced accordingly (a less quality search).
And no computer system developed in coming years can make me think faster.
Maybe management should place coolers spiked with memory enhancing
drugs/herbs around the PTO and see what happens.
==========
VOT (VOLUNTARY OR UNPAID OVER TIME) CLASS ACTION LAWSUIT
It is illegal for federal employees to work uncompensated except in
very specific situations. It is illegal for examiners to work Voluntary
Overtime. However, there are a substantial number of examiners who work
VOT in order to make production.
The is substantial documentary evidence that VOT is widespread and
substantial at the PTO including security logs, signin sheets, various
memos etc.
A law firm and I are kicking around the idea of a class action lawsuit
regarding the VOT. There are a number of cases where federal workers have
sued and gained back pay for their VOT.
Based on what I have seen at my tenure at the PTO -- we are talking
about thousands of VOT hours every biweek -- and since this has been going
for many years, we are talking about a potential of millions of dollars for
bargaining unit members.
Now that the elections are over, I decided to post this to get feedback
from other examiners. How would you feel about a class action lawsuit?
==========
CONCENTRATE ON MORE HOURS PER BD
Ahhh, easier said than done Moriority. One way to approach this would
be presenting this evidence of mass PTO VOT as a reason for allowing more
hours per BD. Another problem to consider is that many examiners sacrifice
work quality with the ever decreasing time allotted per work product
(mountains of new prior art added every day), and thus a lot of VOT that
would be performed (albeit illegally, but for the sake of quality product),
is not. Retroactive payment, if successful, would probably result in
locked buildings in non-authorized times. Let's concentrate on more hours
per BD.
==========
THE POPA VICE PRESIDENT RESPONDS
I am the Vice-pres. of POPA, Lawrence J. Oresky. Before anyone gets
too excited about a lawsuit, please be aware of the fact that 'voluntary
overtime' is covered by the FLSA. There are two categories under Fair Labor
Standards Act - exempt and non-exempt. Those who are exempt from the law
- most professionals - can work VOT. Those examiners who are non-exempt
cannot legally work VOT. And the PTO cannot 'suffer' their VOT without
payment for their work. I have filed a 'class action' Association grievance
over the GS 5 and 7 examiners for whom the PTO suffered VOT. A very
limited review of the data reveals that at least 500 hours of VOT should
be paid to various GS-5 and 7 examiners.
Also, note that the negotiated grievance procedure is the exclusive
remedy available to those covered by the parties' Agreement, except for
EEO and other procedures for which STATUTE permits the filing of a case.
====================
Greg:
I am a recently retired patent examiner [over 10 years in the chemical
groups]. I don't think you can appreciate the utterly INSANE emphasis on
generating even MORE money. Abandoned Files has deteriorated to the point
where YOU CANNOT SEND ANYTHING THERE!!! They have removed the computer
codes from PALM so that it cannot be sent there. It will go to the Examiner.
Or to Central Files. Or to Allowed Files. Since what you are supposed to
do is ISSUE anyway now, Abandoned Files and the proper management of it
becomes moot. What a way to deal with a catastrophic management failure!
About Dickinson, yes - something very interesting there. At Radio Free
POPA there is now a column where the average worker-bee can send in his own
comments and gripes. There was one that lambasted the homosexual style of
Lehman and Dickinson, etc. - pretty personal. There was then an anonymous
reply, saying why are you so harsh, be more open minded, etc. Dickinson
seems to be the first Commish since Gottshalk [before you were born - back
in Nixon days] to evince the slightest interest or concern as to what the
peasants think. [Gottshalk had a "Patent Talk" on every PTO bulletin
board. If you had a problem, comment, or gripe you could call anonymously
to a number and leave a message. This message was then transcribed, a
formal response given, and then it was distributed through out the Office.
It worked.] So there is some hope here with Dickinson.
Further, at a tech. meeting with REQUIRED attendance of the computer
examiners, he stated that he wasn't in favor of a corporation. "We are
already a 'performance based organization'" he was quoted as saying. He
also reinstated the law school tuition assistance program and even MADE
IT RETROACTIVE to the Fall 1998 semester, much to the amazement and
delight of those going to law school.
These are, of course, small morsels, and could just be bait thrown to
keep the masses off-guard. [Lehman did this very well; up unto the end
there were several examiners I knew who were bamboozled by his initial
rhetoric to actually deem him "the most pro-examiner commissioner we've
ever had!"] It could be very well that he takes his job seriously and
wants to do something positive. I wish him the best of luck; the PTO
Directors and the Deputy-Assistant-Whatevers will lie and misinform him
to the end to prevent him from actualy being an informed Commish.
It was interesting that several recent Commish's would routinely fall
asleep at meetings; actual snoring! Clearly, these people would not consider
letting their "job" interfere with their social life and larger agends,
i.e. get your ticket punched, then go to a law firm and get $200,000/year
just to have your name on the masthead. [Lehman tried this, only with a
$300,000 bounty and was turned down by several firms. He was told by one
that "The highest salaried person we have here is the head of the clerks
and she make $60,000/year. EVERYONE else, including the partners, are paid
by billable hours they generate." L. was absolutely outraged at this!
Work! Like a peasant! Do you know who I am?! Etc., etc., etc.! So despite
that Paid Infomercial in the Washington Post Business section several weeks
ago ["5 Top Area Lawyers"] which began that he "wasn't at a loss for job
offers when he left the PTO," this was, of course, a complete fraud of the
actual facts and a hilarious joke for anyone in knowledge of the truth.
Mr. Aharonian, the U.S. and the World need a functioning Patent Office,
one where an actual examination has taken place, one where investor startup
money can be garnered with the showing of a patent grant, a determination
that this inventor is the owner of this invention (Section 101, which seems
to have been discarded on the way to the creation of the PTO Bank). I
honestly don't know what to do about it. You go to Congress and all they
and their aides are concerned about is : MONEY. MONEY. That's all. Democrat
or Republican. It is amazing to see Hatch really push his stinky package,
which would strengthen the Democrats, and the Commerce Department, which he
previously said he wanted to get rid of. There is no Justice at Justice.
In my own searches this last year I have seen innumerable examples of
Legalized Patent Theft, with the PTO as a willing accessory. You want
something that someone else has - just steal it. If done in the right
manner, the opposition will have a VERY hard time convincing a Judge
somewhere that the theft has actually occurred.
I, and other examiners, really want to help the system, but without
a strong ENFORCEMENT of a variety of laws [employment, equal opportunity,
patent, RICO, etc.] which does not seem to be forthcoming from the
Adminstration Fixer, Janet Reno, I am afraid the PTO will collapse into
a cesspool. These issues are most disappointing and I am not sorry to
have left, though I miss the money.