Patent examiners struggle with backlog

GAO finds high turnover rate and quotas impede the patent review process

USPTO’s backlog problem

The origins of a backlog of patent applications at the U.S. Patent and Trademark Office began about 30 years ago when the agency established the biweekly production quotas for its examiners that it still uses today.

The office established the quotas on the basis of the examiner’s General Schedule pay grade and the type and application of the potential patents. If an examiner couldn’t finish an application in the time allotted, that application would join the application backlog.

As technology grew more complex, so did patent applications. The backlog began to grow. Robert Budens, president of the Patent Office Professional Association, said USPTO failed to change its hiring practices and hire more examiners to handle the increased workload.

— Wade-Hahn Chan

The U.S. Patent and Trademark Office has a lot of work to do as more than 730,000 patent applications await the office’s 5,000 patent examiners.

Those figures come from a Government Accountability Office report commissioned by Rep. Tom Davis (R-Va.) and released Oct. 4. The report states that the agency’s heap of unreviewed applications has grown by nearly 73 percent since 2002.

GAO auditors said the modern patent application is complex and takes more time to review than applications of 20 years ago. In surveying former USPTO employees, GAO found that examiners worked overtime without pay and worked during vacations to fulfill biweekly quotas. Those quotas were set in 1976. About two-thirds of examiners who left USPTO between 2002 and 2006 cited the workload as their primary reason for leaving.

“This is not just about reforming the patent system; it’s about modernizing the business model and expectations of the entire office,” Davis said in a statement about the report.
Davis said he wants USPTO Director John Dudas to consider updating its employee evaluation system and think about hiring retired federal employees.

Dudas said the agency would review assumptions the agency uses to establish production goals for patent examiners. “Our most current initiatives incentivize applicants and the public to provide the best information to patent examiners early in the examination process,” he said in a statement released the same day as the GAO report.

USPTO plans to change the way examiners review applications. As outlined in its five-year strategic plan, the agency expects the examiners’ work to become easier when the agency completes its transition to a secure, fully electronic patent application process.

The agency released a Web-based application filing system in March 2006. It also is testing a peer-to-patent community review program, which would allow expert non-USPTO employees to comment on filings.
Dudas, in a statement, described changes that he said have improved patent quality and production. Those reforms include awarding recruitment bonuses, pioneering telework and remote-work programs, reimbursing law school tuition and establishing a casual dress policy. USPTO has hired nearly 3,700 patent examiners in the past three years.

Although some examiners cited those changes as reasons for staying at the agency, the reforms ultimately did little to curb employee turnover. GAO found that of those 3,700 patent examiners the office hired in the past three years, nearly 1,700 left in the same period. Nearly 70 percent of those who left had been working at the agency for less than five years.

USPTO “would be able to cut the backlog if it could keep the employees it hires, and the GAO’s study shows that the patent office can do that by giving examiners the time and tools they need,” said Robert Budens, president of the Patent Office Professional Association.

However, in an interview, Budens sounded pessimistic. “Frankly, I don’t see anything on the horizon that would save us anywhere enough time to reverse the feelings of stress and the sweatshop environment we work under.”

Budens said automation methods that speed the application process won’t affect how fast an examiner can read. The solution must be to hire new people and retain them until they become veterans, he said. “If we could get to a work environment where we can keep almost everyone we hire, eventually we turn that corner and we don’t have to spend so many resources on training and instead [can] spend it on tackling the backlog.”

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