Patent examiners battle stress

GAO report: "USPTO Has Made Progress in Hiring Examiners, but Challenges to Retention Remain"

The U.S. Patent and Trademark Office has a gem of a new headquarters in Alexandria, Va., with a 10-story atrium and employee-friendly amenities, including fitness and child-development centers. But the facilities are not preventing what some observers say is a noticeable exodus of patent examiners from the agency.

Those who regard patent examiners' work as indispensable to the nation's prosperity say USPTO's problem in retaining examiners is troubling. Some attribute the exodus to a culture of poor employee/ manager relations that a recent Government Accountability Office report highlights. Others say the problems are deeper and won't be fixed without restructuring the agency and the standards for awarding patents.

"I don't think I've ever seen a time when, in a concentrated two- or three-week period, I've heard about as many people either having left or planning to leave as I have now," said Ronald Stern, president of the Patent Office Professional Association, the union representing patent examiners.

Stern said GAO's auditors correctly described patent examiners' views in the June 17 report, which states that USPTO faces three challenges that could undermine its efforts to retain a qualified workforce.

The auditors concluded that USPTO's workforce problems arise from the lack of an effective management strategy for communicating and collaborating with examiners, outdated assumptions about production quotas that managers use to reward examiners and a lack of mandatory continued technical training for patent examiners.

Jon Dudas, USPTO's director, responded to the report by promising to stay focused on workforce and process improvements at the agency. He agreed with GAO's auditors on the need to develop a formal plan to improve communications between employees and managers. Dudas also told the auditors he would supplement current training opportunities with a formal program to help patent examiners stay current on state-of-the-art technology in their fields.

Stern said that strained employee/manager relations at USPTO stem from managers who "don't respect the input and advice they get from their employees." A related cause is patent examiners' discontent with what they say are unreasonable production quotas that examiners must work overtime to meet. "This is a legal sweatshop here," Stern said. "The truth is we could do a better job with more time."

According to the auditors' report, managers concerned about reducing a sizable backlog of patent applications want patent examiners to do their jobs faster without additional time allowances, citing advances in automation at the agency.

Patent examiners gave GAO auditors reasons why they require more time to evaluate patent applications than the people who are now USPTO's managers needed in the past. The time examiners have to review a patent application has not increased since 1976, even though examiners have many more complex cases involving, for example, computing innovations and biotechnology, than they did then, Stern said.

"Those are harder cases," he said. "The amount of prior art that has to be searched has gotten greater. The number of pages of specifications that somebody has to read is greater. The number of claims that an employee has to consider is much larger than it used to be. Those things all make it take more time. What has really happened is that people have been forced to do the job faster, and as a consequence, they've been forced to cut corners."

Jason Schultz, a staff attorney at the Electronic Frontier Foundation who specializes in intellectual property issues, said the GAO report officially confirmed what he already knew about USPTO and its patent examiners.

"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," Schultz said. Under current rules, "where anything under the sun is patentable, it puts an unbelievable amount of pressure on the patent office," he added.

The agency's recent automation projects have been helpful but have not eliminated the greater time demands associated with complex technical patents, Stern said. "Some of the software that has been developed is not the friendliest," he said. "Hopefully, that will be changed."

USPTO has announced plans to replace its document imaging system, known as Image File Wrapper, with a PDF-based system that offers patent examiners document images and text-based search capabilities. But managers should talk with the examiners who will be using the new system, Stern said. "Before they set forth all the requirements, they should be discussing that with employees, and they're not," he said.

Relations between the agency's managers and employees haven't always been uneasy, Stern said, recalling that the culture has changed in recent years. But feelings on each side are not so hardened that two-way communication is impossible, he said, adding that "one should never say it is too late."

Government Accountability Office auditors who studied workforce problems at the U.S. Patent and Trademark Office (pictured at left) say the agency faces three challenges in hiring and retaining patent examiners:

• Lack of an effective management strategy to communicate and collaborate with examiners.
• Outdated assumptions about production quotas that managers use to reward examiners.
• A lack of mandatory continued technical training for patent examiners.

— Florence Olsen