By Donald Zuhn —

Earlier this month, we reported on the appearance of Robert Budens, the President of the Patent Office Professional Association (POPA) at an oversight hearing on the USPTO held by the House Subcommittee on Courts, the Internet, and Intellectual Property in late February.  We also reported on appearances by Jon Dudas, the Undersecretary of Commerce for Intellectual Property and Director of U.S. Patent and Trademark Office, and Alan Kasper, the First Vice President of the American Intellectual Property Law Association (AIPLA) (our report on Mr. Dudas’ testimony can be found here and our report on Mr. Kasper’s testimony can be found here).  The second witness appearing before the Subcommittee was Robin Nazzaro, the Director of National Resources and Environment for the U.S. General Accountability Office (GAO).  Today, we conclude our coverage of the PTO oversight hearing by discussing Ms. Nazzaro’s statement.

Ms. Nazzaro’s testimony focused on the findings of the GAO’s 2007 report entitled "U.S. Patent and Trademark Office: Hiring Efforts Are Not Sufficient to Reduce the Patent Application Backlog," which was based in part on a survey of 1,420 patent examiners.  Not surprisingly, the GAO report provides ample support for POPA’s position that the USPTO’s antiquated production goals are the reason for the Patent Office’s high examiner attrition rate (the GAO reports that from 2002 to 2006, one patent examiner left the USPTO for nearly every two the Office hired).  Among the specific findings of the GAO survey were:

• 67% of the examiners surveyed said that the Patent Office’s production goals were among the primary reasons they would consider leaving the USPTO.
• 62% of the examiners surveyed are very dissatisfied or generally dissatisfied with the time the USPTO allots to achieve their production goals.
• 50% of the examiners surveyed are very dissatisfied or generally dissatisfied with how the agency calculates production goals.
• 59% of the examiners surveyed believed that the production system should be reevaluated.
• 70% of the examiners surveyed reported working unpaid overtime during the past year in order to meet their production goals (some putting in more than 15 hours of unpaid overtime per week).
• 59% of the examiners surveyed identified the amount of unpaid overtime that they have to put in to meet their production goals as a primary reason they would choose to leave the USPTO.
• 37% of the examiners surveyed identified the amount of time they must work during paid leave in order to meet their goals as a primary reason they would choose to leave the USPTO.

With respect to the USPTO production system, Ms. Nazzaro explained that examiners receive a "count" for each first Office action and each disposal (e.g., allowance), and that production goals are assigned on the basis of the number of production units (a production unit being equal to two counts) that an examiner is expected to achieve in a two-week period.  Ms. Nazzaro also noted that production goals vary depending upon an examiner’s experience and the technology center in which the examiner works.  As Mr. Budens noted during his testimony, the production goals currently being applied by the USPTO were developed more than 30 years ago.

Touching on the USPTO application backlog, Ms. Nazarro explained that at the end of each fiscal year, patent applications that have not been reviewed for at least a first action are counted towards the backlog.  She also stated that even if the Office were to satisfy its hiring estimate of 1,200 examiners in each of the next five years, the backlog would grow from about 730,000 applications in 2006 to 1.3 million applications in 2011.  In fact, Ms. Nazarro noted that even if the Office hired 2,000 examiners in each of the next five years, the backlog would still rise to over 950,000 applications by 2011.  According to Ms. Nazarro, "the agency has acknowledged that it cannot hire its way out of the backlog and is now focused on slowing the growth of the backlog instead of reducing it."  (This, of course, explains a number of the new rules packages that the Office has introduced in the past nine months.)

One of Ms. Nazarro’s most interesting observations was the statement the GAO received from the Deputy Commissioner for Patent Operations (Margaret Focarino; at right) when she was asked about the need for examiners to use unpaid overtime in order to meet their production goals.  The Deputy Commissioner told the GAO:  "As with many professionals who occasionally remain at work longer to make up for time during the day spent chatting or because they were less productive than intended, examiners may stay at the office (or remote location) longer than their scheduled tour of duty to work."  The GAO, however, does not agree with the Deputy Commissioner’s view on this issue, recommending instead that "the agency comprehensively evaluate the assumptions it uses to establish patent examiner production goals and revise those assumptions as appropriate."