In the wake of two troubling reports on the work practices of patent examiners, U.S. Patent and Trademark Office Director Michelle Lee defended her agency’s policies and practices before the House Subcommittee on Courts, Intellectual Property and the Internet.
“I want to be clear that the USPTO takes any allegations of wrongdoing in our workplace very seriously,” Lee said during the Sept. 13 hearing. “We have taken numerous concrete steps, including requiring new training for our employees and our supervisors, updating policies, adding controls and building tools for our supervisors.”
A Government Accountability Office report published in June 2016 found that patent litigation rose by 150 percent between 2007 and 2015, from about 2,000 infringement lawsuits to more than 5,000. GAO quoted stakeholders as saying that these increases are due to patents, particularly those related to software and communication technology, being more unclear. This raised questions about the quality of the work on the parts of patent examiners.
Then, in August 2016, the Commerce Department Inspector General released a report that examined implications of telework abuse within the agency. Examining the reported work-hour data of the majority of patent examiners and comparing it to those employees’ digital footprints, the OIG found 288,479 hours that could not be verified, amounting to about $18.3 million in wages and bonuses, over a 15-month period.
“If the PTO can’t even guarantee sufficient oversight of its employees’ timecards, how can we be assured patent examiners aren’t just rubberstamping ideas without oversight as well?” asked Subcommittee Chairman Darrell Issa (R-Calif.).
Lee responded by outlining exactly what measures the agency has undertaken to address these issues.
“Since the time we last spoke, my team and I have undertaken a number of initiatives to enhance our workforce management process and procedures,” Lee said.
These included retaining the National Academy of Public Administration to do a third-party audit of the agency’s practices. The 2015 report found that the USPTO had adequate controls in place to ensure the quality of telework and that timecard abuse was not a widespread issue. Lee said the agency has implemented or taken action to respond to all of the report’s 23 recommendations.
Lee also described a new dashboard that allows supervisors to see all pertinent information for the work their employees are conducting, including what they’re working on, and how long they spend working on it.
She also touted the efficacy of policies introduced by USPTO recently, some actually in the middle of the audit performed by the Commerce IG. In addition to increasing training requirements on timecard policies for both employees and supervisors, the agency also requires all teleworkers to submit work schedules to supervisors ahead of time. It’s also required teleworkers to remain logged in at all times while doing work, and to use collaborative communication programs like instant messaging, chat functions and availability indicators.
She pointed out that while the IG report said it found 288,479 unsupported hours, and that number may seem high, that’s out of a total of more than 14 million hours. That comes down to a rate of about 2 percent. And after the agency implemented these new policies, that number dropped to 1.6 percent, which seemed to allay the concerns of at least one lawmaker.
“I would think that most employers would think 1.6 percent is not that bad,” said Rep. Jerrold Nadler (D-N.Y.).
Lee also promoted the quantifiable requirements for the quality, quantity and timeliness of patent examiners, another area of concern for lawmakers. Rep. Steve Chabot (R-Ohio) specifically referred to the GAO report, which said that primary examiners have the least amount of time, the greatest workload, and because of this, the least oversight.
“It’s interesting,” Lee said. “I’ve got the GAO report that tells me that 70 percent of our examiners volunteer and have uncompensated overtime in order to meet their minimum production requirements. And I have the IG report which is telling me that, due to technological efficiencies, the examination job has been so easy we should consider reducing the time. Clearly, the issue of the adequate amount of time for our examiners is an important issue.”
Lee said USPTO is actually in the midst of a study to determine exactly how much time the patent examiners need to perform their jobs. In fact, she said the agency launched the study before the IG report even came out.
She also provided details on the effectiveness of the agency’s telework policy, which saved USPTO $7 million in operations and $37.2 million in real estate costs. In addition, Lee said that during the recent winter shutdowns, the average patent examiner was able to maintain 92 percent efficiency, and trademark examiners achieved 106 percent efficiency working from home.
Lawmakers’ questions also touched on issues such as forum shopping (raising patent litigation in certain districts known to be more favorable to plaintiffs); what improvements, if any, Lee would desire be made to the American Invents Act (wherein USPTO was granted authority to adjust its fees); and how long the USPTO could continue to operate if the government shut down.
Issa asked Lee if the agency would benefit from legislation aimed at helping it clear a backlog of “submarine” patents, which are patents that have been delayed for several years. Lee replied that the agency already has a team dedicated to this issue, and has already succeeded in reducing this backlog by 80 percent.
“If you would, please, allow the agency to do its work,” Lee said.