A New Performance Appraisal Plan in the Works for USPTO Examiners?

With all the practice changes being imposed on patent applicants, it would seem inevitable that some commensurate changes will be imposed on the Examiners at the USPTO. There has been little discussion recently on what the USPTO can do to reassure applicants that patent quality is a two-way street.

This is not to say that the PTO has done nothing - indeed the Office has taken some meaningful steps (most notable the Pre-Appeal Brief Conference Request) to allow applicants to resolve impasses with examiners in a quicker, more efficient manner. However, current PTO operations(i.e., the "count" system) has come increasingly under fire, and may undergo significant changes over the next year.

Back in 2004, the Department of Commerce issued a report that criticized current patent examiner goals, appraisal plans, and performance awards at the PTO. Some notable problems include:

• Patent Examiner Goals Have Not Changed Since 1976 to Better Reflect Efficiencies in Work Processes and Improved Technology

• Most art units (95%) process applications in less time than allotted goals

• Patent examiner performance appraisal plans are not linked to supervisor and PTO goals

• Patent examiners are not rated on achieving PTO’s goals

• Patent examiner award system is not well structured

• Criteria for pendency reduction award are not actually tied to pendency reduction

To view the complete report, click here (link).

Accordingly, the PTO proposed a pilot program last year that would judge examiners under a flat goal of production units per quarter per examiner. The flat goal program requires a flat goal of production units based on the examiner spending 80 percent of his/her time examining. It also raises the production level required for a fully successful performance rating from 95 percent to 100 percent. Under the program, Examiners must complete 100 percent of the assigned goal to maintain a fully successful rating.

Essentially, this regime will place examiners on a quasi-billable hour schedule (insert maniacal laugh here), where examiners will be responsible for issuing "X" amount of production units (i.e. final decisions on applications) within a quarter, assuming that 80% of an examiner's time is spent examining applications. The number of Production Units (PUs) required will be based on the length of the combined quarters and goals based upon grade levels, and complexity of the art.

The pilot program was instituted last year, and expired in September 2007. Notably, the PTO program is similar to the production schedule that already exists for PTO trademark attorneys.

The upside for practitioners is that this, theoretically, will minimize application "churning", where examiners prolong examination through a series of incremental, but indistinct, rejections. As far as applicants are concerned, this could be a positive development.

On the examiner's side, this is not good news. First off, the 80% assumption jacks up the historical 70-75 % examining time existing in the patent corp, where the remaining time is used for training, appeals conferences, interviews, leave time, etc. Also, POPA has pointed out that the flat goal program only accounts for the use of annual leave accrued during a particular quarter. If an employee has accrued leave and desires to take additional leave in a quarter, the examiner would still be responsible for achieving 100 percent of his/her assigned flat goal.

Nevertheless, the PTO is pushing hard to implement flat goal production. In a letter sent last year to POPA, the PTO stated:

“Unless you limit your proposals in this bargaining to the procedures and appropriate arrangements in response to management’s decision to implement a Flat Goal Pilot by next Wednesday, November 22, 2006, and agree in writing that you will not further claim that the entire topic is permissive, we will conclude that you have no interest in bargaining over these issues and will begin the implementation process for the pilot, based upon our last best offer.”

View USPTO's notice letter on flat goal production here (link)

Read POPA's reaction here (link) and here (link)

NOTE: In an interesting twist, POPA is claiming that the PTO's changes regarding flat goal of production is illegal (where have we heard that before about PTO rule changes?). According to POPA:

The agency’s program, however, is illegal because statute and case law require that a federal employee’s performance appraisal plan “to the maximum extent possible, permit the accurate evaluation of job performance on the basis of objective criteria.” 5 U.S.C. § 4302(b)(1).

For years, the current examiner performance appraisal plans have measured examiners’ performance in six-minute intervals. The flat goal would no longer account for all the actual duties performed by an examiner and, thus, would not be measuring performance “to the maximum extent feasible.”