Monday, July 25, 2005

Unhappy patent examiners?


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problems arise from the lack of an effective management strategy for communicating and collaborating with examiners, outdated assumptions about production quotas that managers use to reward examiners and a lack of mandatory continued technical training for patent examiners.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


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