by Gary Jones
FLC Washington, DC Representative
Greetings from DC. In the first week of October, the General Accountability Office (GAO) released a report focused specifically on the ability of U.S. Patent and Trademark Office (USPTO) hiring practices to reduce the existing backlog of patent applications—a backlog that has increased by over 70 percent since 2002 to now number about 730,000 applications.
The conclusions are not encouraging for those with patent applications currently under review. The title of the report, "Hiring Efforts Are Not Sufficient to Reduce the Patent Application Backlog," effectively highlights the findings. As everyone in the S&T community is no doubt aware, there have been significant efforts recently in Congress and within the Administration focused on the U.S. patent system, e.g., comprehensive patent reform legislation is working its way through Congress, while the USPTO recently issued new rules and procedures on several issues associated with the patent application process.
While these actions certainly have the potential to affect the current system in a number of ways, one of the greatest sources of frustration for those with applications currently under review is the growing length of time between filing and issuance, a period that can last many years depending on the industry and circumstances. It was with this in mind that the GAO was asked to assess whether current USPTO hiring practices were adequate to hire and retain a patent examination workforce adequate to not only meet the current demand, but to effectively begin to work off the continually expanding backlog.
The USPTO currently employs about 5,000 patent examiners to review and take action on all patent applications. They determine the number of new examiners to hire, according to the GAO, based "on the agency's funding levels and institutional capacity to support additional staff and not on the existing backlog."
The GAO reports that while the USPTO hires as many new patent examiners as its budget projections will allow and that this method is consistent with Office of Personnel Management (OPM) workforce planning strategies, the annual increase in examiners is significantly offset by a high attrition rate. Further, this attrition rate is particularly pronounced among examiners with less than 5 years' experience — precisely those examiners typically responsible for focusing on the backlog.
Between 2002 and 2006, the agency lost one examiner for every two hired, with over 70 percent of those leaving having less than 5 years' experience. And the backlog continues growing.
The one area where the GAO and USPTO differ in their findings/opinions concerns the apparent reasons for the high attrition rate. USPTO management identified "personal reasons, such as the job not being a good fit or family reasons" as the primary driver for examiners leaving early in their tenure. The GAO, however, based on a survey of patent examiners, reports that the primary reasons for the high attrition rate are the agency's production goals, production goals set and unchanged since 1976, long before the current backlog crisis.
The GAO reports that "70 percent of patent examiners reported working unpaid overtime during the past year, in order to meet the production goals."
The report also addressed incentive and workforce flexibility initiatives recently employed by the USPTO, noting that these initiatives were often identified as the reasons why many examiners are staying.
For instance, USPTO management specifically pointed to three initiatives as particularly effective in retaining examiners: special pay rates (potentially 25 percent over comparable federal salaries), bonuses for exceeding production goals (over $10.6 million paid in 2006), and opportunities to work from remote locations (in 2006 about 20 percent of the examiner workforce participated in the telework program). Ultimately, the GAO made a single recommendation based on its concerns regarding the basis for USPTO hiring practices and its inability to work down the backlog — which in turn could affect U.S. competitiveness. It recommended that the USPTO "undertake a comprehensive evaluation of the assumptions that the agency uses to establish patent examiner production goals and revise those assumptions as appropriate."
The USPTO has agreed to the findings and recommendation in the report, issuing a concurrent press statement indicating that they would "review the assumptions underlying the current production standards." In the statement, USPTO Director Jon Dudas noted, "I am pleased that, after careful study, the GAO agrees with our assessment that hiring alone will not reduce the backlog of patent applications." He went on to identify a number of internal measures implemented by the agency, several identified in the GAO report, resulting in improvements in patent quality and production. He stated, "A next logical step in bringing the USPTO fully into the 21st century is to reevaluate how these initiatives impact our goals."
One final note. An interesting patent just issued by the USPTO was brought to my attention recently. Patent #7,272,572 was issued in September for "a method and system for facilitating the transfer of intellectual property." It seems to be an apparent business method patent that many in our community might want to take a look at. What is interesting to note is that this patent was filed in 2000 and issued in late 2007—a seven-year member of the backlog.
Gary can be reached at gkjones@federallabs.org.
