U.S. Patent And Trademark Office
Hiring Efforts Are Not Sufficient to Reduce the Patent Application Backlog Gao ID: GAO-07-1102 September 4, 2007Increases in the volume and complexity of patent applications have lengthened the amount of time it takes the U.S. Patent and Trademark Office (USPTO) to process them. In addition, concerns have continued about USPTO's efforts to hire and retain an adequate patent examination workforce that can not only meet the demand for patents but also help reduce the growing backlog of unexamined patent applications. In this context, GAO was asked to determine for the last 5 years (1) USPTO's process for identifying its annual hiring estimates and the relationship of these estimates to the patent application backlog; (2) the extent to which patent examiner hiring has been offset by attrition, and the factors that may contribute to this attrition; and (3) the extent to which USPTO's retention efforts align with patent examiners' reasons for staying with the agency. For this review, GAO surveyed 1,420 patent examiners, and received an 80 percent response rate.
In each of the last 5 years, USPTO primarily identified its projected annual hiring estimates on the basis of available funding levels and its institutional capacity to support additional staff and not on the existing backlog or the expected patent application workload. USPTO's process for identifying its annual hiring estimates is generally consistent with accepted workforce planning strategies. Each year the agency determines how many new patent examiners it has the budget and supervisory and training capacity to hire. However, because this approach does not take into account how many examiners are needed to reduce the existing patent application backlog or address the inflow of new applications, it is unlikely that the agency will be able to reduce the growing backlog simply through its hiring efforts. Although USPTO is hiring as many new patent examiners as its budget and institutional capacity will support, attrition is offsetting hiring progress, and agency management and patent examiners disagree about the causes for attrition. From 2002 through 2006, one patent examiner left USPTO for nearly every two the agency hired. This represents a significant loss to the agency because 70 percent of those who left had been at the agency for less than 5 years and new patent examiners are primarily responsible for the actions that remove applications from the backlog. According to USPTO management, patent examiners leave the agency primarily for personal reasons, such as the job not being a good fit or family reasons. In contrast, 67 percent of patent examiners identified the agency's production goals as one of the primary reasons examiners may choose to leave USPTO. These production goals are based on the number of applications patent examiners must complete biweekly and have not been adjusted to reflect the complexity of patent applications since 1976. Moreover, 70 percent of patent examiners reported working unpaid overtime during the past year, in order to meet their production goals. Such a large percentage of patent examiners who are working extra time to meet their production goals and would choose to leave the agency because of these goals may be an indication that the production goals do not accurately reflect the time patent examiners need to review applications and is undermining USPTO's hiring efforts. The retention incentives and flexibilities provided by USPTO over the last 5 years generally align with the primary reasons identified by patent examiners for staying with the agency. Between 2002 and 2006, USPTO used a variety of retention flexibilities such as a special pay rate, performance bonuses, flexible work schedules, and a telework program to encourage patent examiners to stay with the agency. According to USPTO management the most effective retention efforts were those related to compensation and an enhanced work environment. GAO's survey of patent examiners indicates that most patent examiners generally approved of USPTO's retention efforts, and ranked the agency's salary and other pay incentives as well as the flexible work schedule among the primary reasons for staying with the agency.
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Director: Team: Phone:GAO-07-1102, U.S. Patent And Trademark Office: Hiring Efforts Are Not Sufficient to Reduce the Patent Application Backlog
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Report to the Ranking Member, Committee on Oversight and Government
Reform, House of Representatives:
United States Government Accountability Office:
GAO:
September 2007:
U.S. Patent And Trademark Office:
Hiring Efforts Are Not Sufficient to Reduce the Patent Application
Backlog:
U.S. Patent and Trademark Office:
GAO-07-1102:
GAO Highlights:
Highlights of GAO-07-1102, a report to the Ranking Member, Committee on
Oversight and Government Reform, House of Representatives.
Why GAO Did This Study:
Increases in the volume and complexity of patent applications have
lengthened the amount of time it takes the U.S. Patent and Trademark
Office (USPTO) to process them. In addition, concerns have continued
about USPTO‘s efforts to hire and retain an adequate patent examination
workforce that can not only meet the demand for patents but also help
reduce the growing backlog of unexamined patent applications. In this
context, GAO was asked to determine for the last 5 years (1) USPTO‘s
process for identifying its annual hiring estimates and the
relationship of these estimates to the patent application backlog; (2)
the extent to which patent examiner hiring has been offset by
attrition, and the factors that may contribute to this attrition; and
(3) the extent to which USPTO‘s retention efforts align with patent
examiners‘ reasons for staying with the agency. For this review, GAO
surveyed 1,420 patent examiners, and received an 80 percent response
rate.
What GAO Found:
In each of the last 5 years, USPTO primarily identified its projected
annual hiring estimates on the basis of available funding levels and
its institutional capacity to support additional staff and not on the
existing backlog or the expected patent application workload. USPTO‘s
process for identifying its annual hiring estimates is generally
consistent with accepted workforce planning strategies. Each year the
agency determines how many new patent examiners it has the budget and
supervisory and training capacity to hire. However, because this
approach does not take into account how many examiners are needed to
reduce the existing patent application backlog or address the inflow of
new applications, it is unlikely that the agency will be able to reduce
the growing backlog simply through its hiring efforts.
Although USPTO is hiring as many new patent examiners as its budget and
institutional capacity will support, attrition is offsetting hiring
progress, and agency management and patent examiners disagree about the
causes for attrition. From 2002 through 2006, one patent examiner left
USPTO for nearly every two the agency hired. This represents a
significant loss to the agency because 70 percent of those who left had
been at the agency for less than 5 years and new patent examiners are
primarily responsible for the actions that remove applications from the
backlog. According to USPTO management, patent examiners leave the
agency primarily for personal reasons, such as the job not being a good
fit or family reasons. In contrast, 67 percent of patent examiners
identified the agency‘s production goals as one of the primary reasons
examiners may choose to leave USPTO. These production goals are based
on the number of applications patent examiners must complete biweekly
and have not been adjusted to reflect the complexity of patent
applications since 1976. Moreover, 70 percent of patent examiners
reported working unpaid overtime during the past year, in order to meet
their production goals. Such a large percentage of patent examiners who
are working extra time to meet their production goals and would choose
to leave the agency because of these goals may be an indication that
the production goals do not accurately reflect the time patent
examiners need to review applications and is undermining USPTO‘s hiring
efforts.
The retention incentives and flexibilities provided by USPTO over the
last 5 years generally align with the primary reasons identified by
patent examiners for staying with the agency. Between 2002 and 2006,
USPTO used a variety of retention flexibilities such as a special pay
rate, performance bonuses, flexible work schedules, and a telework
program to encourage patent examiners to stay with the agency.
According to USPTO management the most effective retention efforts were
those related to compensation and an enhanced work environment. GAO‘s
survey of patent examiners indicates that most patent examiners
generally approved of USPTO‘s retention efforts, and ranked the
agency‘s salary and other pay incentives as well as the flexible work
schedule among the primary reasons for staying with the agency.
What GAO Recommends:
GAO recommends that USPTO undertake a comprehensive evaluation of the
assumptions that the agency uses to establish its production goals.
USPTO generally agreed with this recommendation.
[hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-07-1102].
To view the full product, including the scope and methodology, click on
the link above. For more information, contact Anu Mittal, 202-512-3841,
mittala@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
USPTO's Annual Hiring Estimates Are Determined by Funding and
Institutional Capacity and Are Unlikely to Reduce the Patent
Application Backlog:
Attrition Has Greatly Offset Hiring over the Last 5 Years, and Agency
Management and Patent Examiners Disagree about the Reasons for
Attrition:
Retention Incentives and Flexibilities Provided over the Last 5 Years
Generally Align with the Primary Reasons Patent Examiners Identified
for Staying at USPTO:
Conclusion:
Recommendation for Executive Action:
Agency Comments and Our Evaluation:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: Selected Survey Results:
Appendix III: Comments from the Department of Commerce:
Appendix IV: GAO Contact and Staff Acknowledgments:
Tables:
Table 1: Retention Incentives and Flexibilities Provided by USPTO by
Category, and Other Retention Efforts, Fiscal Years 2002 through 2006:
Table 2: Number of Bonuses and Bonus Amounts USPTO Awarded, and Number
of Patent Examiners Participating in the Telework Program in Fiscal
Years 2002 through 2006:
Table 3: Patent Examiners' Views on Compensation-Related and Enhanced
Work Environment Incentives and Flexibilities in Decreasing Order of
Importance:
Table 4: Summary of Patent Examiner Population and Survey Sample by
Stratum:
Figures:
Figure 1: USPTO Patent Examiner Projected Hiring Estimates and Actual
Number Hired, Fiscal Years 2002 through 2006:
Figure 2: Patent Examiner Attrition by Years of Experience, Fiscal
Years 2002 through 2006:
Figure 3: Estimated and Actual First Actions Completed, Fiscal Years
2002 through 2006:
Abbreviations:
GS: general schedule:
OPM: Office of Personnel Management:
PALM: Patent Application Locating and Monitoring:
POPA: Patent Office Professional Association:
UPR: utility, plant, and reissue USPTOU.S. Patent and Trademark Office:
United States Government Accountability Office:
Washington, DC 20548:
September 4, 2007:
The Honorable Tom Davis Ranking Member Committee on Oversight and
Government Reform House of Representatives:
Dear Mr. Davis:
Protecting intellectual property rights and encouraging technological
progress are important for ensuring the current and future
competitiveness of the United States. The U.S. Patent and Trademark
Office (USPTO) helps protect the nation's competitiveness by granting
patents for innovations ranging from new treatments for diseases, to
new wireless technology applications, to new varieties of
plants.[Footnote 1] USPTO's ability to keep up with the demand for
patents is essential for achieving its mission. However, increases in
both the volume and complexity of patent applications have lengthened
the amount of time it takes the agency to process them. As a result,
the inventory of patent applications that have not yet been reviewed,
called the backlog, has been growing for over 15 years--since fiscal
year 2002 alone, the backlog has increased by nearly 73 percent to
about 730,000 applications.
Inventors submit applications to USPTO to obtain a patent for their
inventions and the right it affords the holder to exclude others from
making, using, or selling the patented item in the United States. USPTO
is funded by fees collected from the public for specific activities
related to processing applications. The spending of these fees is
subject to provisions determined by Congress in annual appropriations
acts. USPTO relies on a workforce of nearly 5,000 patent examiners--
attorneys, engineers, and other scientific and technical professionals-
-to review and make decisions on patent applications. The number of
these professionals that USPTO hires, as well as the overall size and
experience of the patent examination workforce, affects the number of
applications that can be reviewed in any given year. As part of the
review process, patent examiners are assigned what is known as a
biweekly "production goal" on the basis of their position in the agency
and the types of patent applications they are assigned to
review.[Footnote 2] Production goals are the number of specific actions
and decisions that patent examiners must make about patent applications
they review during a 2-week period.[Footnote 3] Patent examiners'
performance is assessed biweekly on their ability to meet their
production goals; their inability to meet these goals could have an
impact on their compensation and continued employment with the agency.
However, as we noted in 2005, the assumptions underlying the agency's
production goals were established over 30 years ago and have not since
been updated.
Since 2000, USPTO has implemented a variety of human capital
flexibilities intended to help recruit and retain enough patent
examiners and maintain a workforce that is sufficient to meet the
demand for patents. These flexibilities have included the use of
recruitment bonuses, law school tuition reimbursement, and a casual
dress policy. In 2005, in response to congressional concerns about
USPTO's efforts to attract and retain a qualified workforce, we
reported that it was too soon to determine the long-term success of
USPTO's recruitment and retention efforts because, in part, they had
been inconsistently sustained during the limited time they had been in
effect, and that not all of the planned initiatives had been
implemented.[Footnote 4] However, concerns have continued because of
increasing patent examiner attrition, especially among patent examiners
who have been at the agency for less than 5 years, which is causing the
workforce to grow at a slower rate than would be expected given the
number of patent examiners the agency has been hiring each
year.[Footnote 5]
In this context, you asked us to determine, for the last 5 years, (1)
USPTO's process for identifying its annual hiring estimates and the
relationship of these hiring estimates to the patent application
backlog; (2) the extent to which patent examiner hiring has been offset
by attrition at USPTO, and what factors may contribute to patent
examiners' decisions to leave the agency; and (3) the extent to which
the retention incentives and flexibilities USPTO has implemented align
with patent examiners' reasons for staying with the agency.
To determine USPTO's process for developing annual hiring estimates and
the relationship these estimates have to the patent application
backlog, we interviewed agency officials and reviewed agency documents
and reports by other organizations relating to USPTO's workforce
planning process, including data the agency used to identify the number
of patent examiners it planned to hire in each of the last 5 fiscal
years. We analyzed patent examiner and patent application data for the
last 5 fiscal years, as well as USPTO's projections of that data
through fiscal year 2012. In addition, we reviewed the Office of
Personnel Management's (OPM) workforce planning guidance and
interviewed officials from OPM's Human Capital Assessment and
Accountability Framework Office to develop criteria to assess USPTO's
workforce planning process. To determine the extent to which patent
examiner hiring has been offset by attrition at USPTO over the last 5
years, we analyzed patent examiner workforce, hiring, and attrition
data from this time period. To determine factors that may contribute to
patent examiners' decisions to leave the agency, we conducted a Web-
based survey of a stratified random sample of 1,420 USPTO patent
examiners. Overall, we received an 80 percent response rate to our
survey. Estimates based on this survey allow us to project our results
to all patent examiners at USPTO with a 95 percent level of confidence.
All percentage estimates included in this report have a 95 percent
confidence interval with plus or minus 5 percentage points. To address
this objective, we had to rely on the views of current patent examiners
because USPTO does not maintain contact information for patent
examiners that have left the agency and we could not identify any
organizations that maintain this information for USPTO staff. In
addition, we interviewed USPTO officials, representatives of the patent
examiner union--the Patent Office Professional Association (POPA)--and
an official from the American Intellectual Property Law Association. To
determine the extent to which the retention incentives and
flexibilities provided by USPTO align with patent examiners' reasons
for staying with the agency, we interviewed USPTO officials about the
retention incentives and flexibilities they have used in the past 5
years, reviewed our previous report on USPTO's recruitment and
retention efforts, interviewed representatives from POPA and an
official from the American Intellectual Property Law Association to
obtain their perspectives on factors affecting patent examiner
retention and workload, and used the Web-based survey described above
to obtain patent examiners' views on USPTO's retention incentives and
flexibilities. Specifically, we sought patent examiners' views on the
reasons they would choose to stay at the agency. Appendix I contains a
more detailed discussion of our scope and methodology. We conducted our
work from August 2006 through July 2007 in accordance with generally
accepted government auditing standards.
Results in Brief:
In each of the last 5 years, USPTO has identified its annual hiring
estimates on the basis of the agency's funding levels and institutional
capacity to support additional staff and not on the existing backlog or
the expected patent application workload. Because of its increasing
workload relative to its existing workforce, over the last 5 years,
USPTO has had to hire additional patent examiners each year. The
primary factors that determined USPTO's annual hiring estimates during
this time have been the agency's annual funding levels and its capacity
to train and supervise new patent examiners. About 18 months before the
start of the hiring year, USPTO considers these factors to determine
its projected hiring estimates for the coming year. During these 18
months, the agency refines these estimates on the basis of its most
current budget and patent examination workforce data to determine the
number of patent examiners the agency can actually hire. In each of the
last 5 years, for various reasons, the number of patent examiners the
agency actually hired differed from the hiring estimate that the agency
had originally projected. For example, the projected hiring estimate
for fiscal year 2004 was 750 patent examiners, but the agency actually
hired 443 because of subsequent funding limitations. USPTO's current
process is consistent with workforce planning strategies endorsed by
OPM, though it is a significant deviation from the agency's previous
workforce planning strategy, which was more directly linked to the
patent examination workload. Over the last 5 years the agency has moved
away from its prior strategy because it realized that it did not have
the institutional capacity to train and supervise the relatively large
number of new patent examiners it would need to hire annually to keep
pace with the increasing number of incoming patent applications
expected each year. Although shifting to its current approach has
enabled USPTO to better match its hiring estimates to its institutional
training and supervisory capacity, this approach does not take into
account how many patent examiners are needed to reduce the backlog of
existing patent applications or address the expected inflow of new
applications. Consequently, the patent application backlog has
continued to increase, and it is unlikely that the agency will be able
to reduce the backlog simply through its hiring efforts.
From 2002 through 2006, patent examiner attrition has continued to
significantly offset USPTO's hiring progress. Although USPTO is hiring
as many new patent examiners as it has the annual capacity to supervise
and train, for nearly every two patent examiners it has hired over the
last 5 years at least one has left the agency. Specifically, USPTO
hired 3,672 patent examiners between 2002 and 2006, and 1,643 patent
examiners left the agency during this time. More importantly, of those
who left, 70 percent had been at USPTO for less than 5 years. This is a
significant loss to the agency because, according to USPTO officials,
new patent examiners are primarily responsible for making the initial
decisions on applications, which removes them from the backlog. We
found that within the agency there is significant disagreement about
why patent examiners are continuing to leave. According to USPTO
management, patent examiners leave primarily for personal reasons--for
example, because the job is not a good fit for them or they need to
relocate because of a spouse's job. In contrast, patent examiners, and
the union officials who represent them, identified unrealistic agency
production goals, which were established 30 years ago, as one of the
primary reasons patent examiners may choose to leave. For example,
union officials told us that attrition can primarily be attributed to
the insufficient amount of time provided to patent examiners to meet
their production goals. This was supported by our survey of patent
examiners, in which 67 percent indicated that the agency's production
goals were among the primary reasons they would consider leaving USPTO.
Moreover, to meet their production goals, the majority of patent
examiners had to work substantial unpaid overtime in the last 12
months, while many others worked while on annual leave. According to
one of our survey respondents, "vacation time means catch up time."
Such a large percentage of patent examiners working extra time to meet
their production goals, is an indication that USPTO's production goals
may no longer accurately reflect the time patent examiners need to
review applications. Given the high rate of attrition that may result,
in part, from such outdated production goals, we are recommending that
USPTO undertake a comprehensive evaluation of how it establishes these
goals and revise these goals as appropriate.
The retention incentives and flexibilities that USPTO has provided over
the last 5 years generally align with the primary reasons patent
examiners identified for staying at the agency. USPTO management told
us that their most effective retention efforts have been those that
provide additional compensation to and an enhanced work environment for
patent examiners. Specifically, USPTO officials identified the agency's
special pay rates, which can be more than 25 percent above federal
salaries for comparable positions; the agency's bonus structure, which
allows patent examiners to earn various cash awards for exceeding
production goals; and opportunities for patent examiners to work either
part-time or full-time from remote locations as being the most
effective retention measures for the agency. For example, in fiscal
year 2006, USPTO awarded 4,645 bonuses to patent examiners totaling
over $10.6 million; patent examiners may receive up to three different
types of bonuses in a fiscal year. That same year, approximately 20
percent of patent examiners participated in the agency's telework
program, which allows patent examiners to work some or all of their
time from an off-site location, and approximately 10 percent of patent
examiners were enrolled in the hoteling program, through which USPTO
provides equipment to those patent examiners who are approved to work
full-time from an off-site location. According to our survey, most
patent examiners generally identified these types of retention
incentives and flexibilities as among the most important reasons to
stay at the agency. For example, 58 percent of patent examiners
identified salary, and 49 percent flexible work schedules, as the
primary reasons for staying with the agency.
In its written comments on a draft of our report (reprinted in app.
II), the Department of Commerce agreed with our findings, conclusions,
and recommendation. In addition, the agency provided technical comments
that we have incorporated as appropriate.
Background:
To obtain a patent, inventors--or more usually their attorneys or
agents--submit an application to USPTO that fully discloses and clearly
describes one or more distinct innovative features of the proposed
invention and pay a filing fee to begin the examination process. Patent
examiners review these applications to determine if a patent is
warranted. In making this determination, patent examiners must meet two
specific milestones in the patent examination process: first actions
and disposals.
˛ First action. Patent examiners notify applicants about the
patentability of their invention through what is called a first action.
After determining if the invention is new and useful, or a new and
useful improvement on an existing process or machine, patentability is
determined through a thorough investigation of information related to
the subject matter of the patent application and already available
before the date the application was submitted, called prior art. Prior
art includes, but is not limited to, publications and U.S. and
international patents.
˛ Disposal. Patent examiners dispose of a patent application by
determining, among other things, if a patent will be granted--called
allowance--or not.
Patent examiners receive credit, called counts, for each first action
and disposal, and are assigned production goals (also known as quotas)
on the basis of the number of production units--composed of two counts-
-they are expected to achieve in a 2-week period. The counts in a
production unit may be any combination of first actions and disposals.
The production goals that are used to measure patent examiner
performance are based on the same assumptions that USPTO established in
the 1970s. At that time, the agency set production goals in the belief
that it should take a patent examiner a certain amount of time to
review a patent application and achieve two counts based on the patent
examiner's experience (as determined by the patent examiner's position
in the agency) and the type of patent application reviewed. As a
result, these goals vary depending upon the patent examiner's position
in the federal government's general schedule (GS) pay scale and the
technology center in which the patent examiner works.[Footnote 6] For
example, a GS-12 patent examiner working on data processing
applications is expected to achieve two counts in 31.6 hours, whereas a
GS-12 patent examiner working on plastic molding applications is
expected to do so in 20.1 hours. In contrast, GS-7 patent examiners
working on these two types of applications are expected to achieve two
counts in 45.1 and 28.7 hours, respectively.
Patent examiner achievements are recorded biweekly, and, at the end of
each fiscal year, those patent applications that have not been reviewed
for first action are counted as part of USPTO's inventory of unexamined
applications, otherwise known as the patent application backlog. In
2002, we reported that the patent application backlog had increased by
nearly 250 percent from 1990 to 2001, and that USPTO had projected that
the inventory would increase to between 393,000 and 512,000 in fiscal
year 2002.[Footnote 7] In addition, we reported that the agency had
made three significantly different predictions about the future of the
backlog in three separate reports that were based on different
assumptions:
˛ In its Fiscal Year 2002 Corporate Plan, in 2001, USPTO projected that
the backlog would increase to almost 1.3 million by the end of fiscal
year 2006.
˛ In USPTO's Business Plan, in 2002, the agency projected that the
backlog would increase to about 584,000 through fiscal year 2007.
˛ In the 21st Century Strategic Plan, in 2002, USPTO projected that the
backlog would decrease to about 144,000 through fiscal year
2007.[Footnote 8]
In 2005, we also reported on USPTO's efforts and challenges in
attracting and retaining a qualified patent examination workforce.
Specifically, we reported that USPTO faced human capital challenges
because, among other things, it had not established an effective
mechanism for managers to communicate and collaborate with patent
examiners, and managers and patent examiners had differing opinions on
the need to update the monetary award system that is based on
assumptions of the time it takes to review a patent application that
were established in 1976. We recommended that USPTO develop formal
strategies to improve communication and collaboration among management,
patent examiners, and the union to resolve key issues identified in the
report, such as the assumptions underlying the quota system. In
response to that recommendation, USPTO conducted an internal survey on
communication, and is working to develop a communication strategy on
the basis of the results. However, the agency has not addressed the
issues we identified relating to the assumptions underlying the quota
system.
USPTO's Annual Hiring Estimates Are Determined by Funding and
Institutional Capacity and Are Unlikely to Reduce the Patent
Application Backlog:
Over the last 5 years, as a result of its increasing workload relative
to its existing workforce, USPTO determined that it would need to hire
additional patent examiners each year. However, the agency identified
its annual hiring estimates primarily on the basis of available funding
levels and its institutional capacity to train and supervise new patent
examiners, and not on the basis of the number of patent examiners
needed to reduce the existing backlog or review new patent
applications. While the process USPTO uses to identify its annual
hiring estimates is consistent with OPM's workforce planning strategies
and has enabled the agency to better match its hiring estimates to its
institutional capacity, it is unlikely that the agency will be able to
reduce the patent application backlog simply through its hiring
efforts.
USPTO's Funding Levels and Supervisory and Training Capacity Determine
Its Annual Hiring Estimates:
According to USPTO, during the last 5 years, the agency has used its
available funding levels and its capacity to supervise and train patent
examiners as the primary factors for identifying its projected annual
hiring estimates. Specifically, USPTO begins the process of identifying
projected hiring estimates as part of creating its budget submission
for the Office of Management and Budget (OMB) 18 months before the
start of the hiring year in order to meet OMB's budget submission
timeline. As part of this process, the agency considers expected
funding levels and patent examiner workforce data that are available at
that time.[Footnote 9] On the basis of these data, USPTO next considers
its institutional capacity to supervise and train patent examiners. For
example, in identifying its fiscal year 2002 hiring estimate, USPTO
determined that funding availability would limit the number of patent
examiners the agency would be able to hire, and used the number of
patent examiners it had hired in the most recent year as a guide for
its projected hiring estimate. However, in fiscal years 2003 through
2006, USPTO determined that funding levels would not be a limiting
factor for hiring, and therefore established its hiring estimates
primarily based on its institutional capacity to supervise and train
patent examiners.
In determining its institutional capacity to supervise and train new
patent examiners, USPTO considers a number of factors. For example, the
agency estimates its supervisory capacity by determining how many
additional patent examiners can be placed in each of the technology
centers. This number is limited by the number of supervisors available
in each center who can sign patent application approvals and rejections
and provide on-the-job training for new patent examiners. Although new
patent examiners can review the prior art relating to a patent
application, only supervisors can authorize a new patent examiner's
decision to approve or reject a patent application.[Footnote 10]
Therefore, the agency tries to ensure that the patent-examiner-to-
supervisor ratio is about 1 supervisor for every 12 patent examiners;
otherwise it could result in delays and inefficiencies in making
initial and final decisions on patent applications. Similarly, USPTO's
training capacity is determined by the number of patent examiners the
agency believes it can train in a year. Before fiscal year 2006,
training capacity was determined by how many patent examiners could be
accommodated in the required training courses offered by the agency to
new patent examiners. This training consisted of 2-or 3-week courses
that were offered throughout the year and were led by supervisory
patent examiners. The courses could accommodate about 16 patent
examiners each, and in fiscal year 2004, according to USPTO, the agency
offered about 28 training sessions.
Because USPTO's projected hiring estimates are established at least 18
months in advance of the hiring year, USPTO continues to refine them to
reflect changes that might occur during the 18-month period. For
example, in 2002 USPTO established a projected hiring estimate of 750
patent examiners for fiscal year 2004 when it created its budget
submission for OMB. However, USPTO actually hired 443 patent examiners
in fiscal year 2004 because of budget constraints that had to be
considered after its original estimates had been developed. Figure 1
shows USPTO's projected and actual hiring numbers for fiscal years 2002
through 2006.
Figure 1: USPTO Patent Examiner Projected Hiring Estimates and Actual
Number Hired, Fiscal Years 2002 through 2006:
[See PDF for image]
Source: USPTO.
[End of figure]
The reasons for the differences between projected hiring estimates and
the number of patent examiners hired in fiscal years 2002 through 2006
were primarily related to funding availability. In fiscal years 2003
and 2004, according to USPTO, the agency's appropriations were
significantly less than the agency's budget requests. As a result, the
agency could not financially support the number of new patent examiners
it had initially planned to hire. Conversely, in fiscal years 2005 and
2006, USPTO hired more patent examiners than originally planned because
the agency received greater funding for those years than originally
anticipated.
The way in which USPTO identifies annual patent examiner hiring
estimates is generally consistent with workforce planning strategies
endorsed by OPM. OPM has identified key elements that agencies should
consider when planning to hire additional personnel, and OPM officials
told us that these key elements are well recognized throughout the
field of workforce planning. For example, OPM recommends that agencies
regularly track workforce trends to ensure updated models for meeting
organizational needs, base decisions on sources of information such as
past workforce data, and include in its workforce planning process a
workforce analysis system that identifies current and future losses due
to attrition. We found that in identifying its hiring estimates, USPTO
generally applies these principles because it makes decisions on the
basis of trends in hiring, attrition, and total workforce data from
recent years, and identifies current losses due to attrition when
identifying its annual hiring estimates and estimates of attrition for
the hiring year.
Although consistent with OPM's workforce strategies, USPTO's current
approach is significantly different from the approach that the agency
used prior to fiscal year 2002. At that time, the number of patent
examiners USPTO wanted to hire was based on the number of patent
applications the agency expected to receive in the hiring year, as well
as on the anticipated patent application backlog at the beginning of
the hiring year. According to USPTO officials, since fiscal year 2002,
the agency has moved away from this approach because it realized that
it could no longer supervise and train enough patent examiners to keep
up with the increasing workload.
However, USPTO recognizes that it needs to increase its institutional
capacity to hire more patent examiners, and in this regard is taking
steps to increase its training and supervisory capacity. For example,
to increase its training capacity, USPTO implemented an 8-month
training program in fiscal year 2006 called the Patent Training Academy
that will provide the agency a constant annual training capacity of
1,200 new patent examiners for each of the next 5 years. USPTO also
believes that the academy may indirectly improve the agency's
supervisory capacity because it will better prepare new patent
examiners to start work in a technology center, and therefore they will
need less supervision and on-the-job training. USPTO plans to monitor
new patent examiners after they have graduated from the academy in
order to determine if the agency can further use this approach to
increase its institutional capacity and, therefore, its future annual
hiring estimates.
Even with its increased hiring estimates of 1,200 patent examiners each
year for the next 5 years, USPTO's patent application backlog will
continue to grow, and is expected to increase to over 1.3 million at
the end of fiscal year 2011. According to USPTO estimates, even if the
agency were able to hire 2,000 patent examiners per year in fiscal year
2007 and each of the next 5 years, the backlog would continue to
increase by about 260,000 applications to 953,643 at the end of fiscal
year 2011. The agency has acknowledged that it cannot hire its way out
of the backlog despite its recent increases in hiring, and is now
focused on slowing the growth of the backlog instead of reducing it.
Attrition Has Greatly Offset Hiring over the Last 5 Years, and Agency
Management and Patent Examiners Disagree about the Reasons for
Attrition:
Although USPTO is hiring as many new patent examiners as it has the
annual funding and institutional capacity to support, increasing
attrition among patent examiners has resulted in the loss of one patent
examiner for nearly every two hired over the last 5 years. While agency
officials cited personal reasons for patent examiner attrition, patent
examiners disagreed and cited the agency's outdated production goals as
one of the primary reasons they would choose to leave the agency.
Over the Last 5 Years, One Patent Examiner Has Left USPTO for Nearly
Every Two Hired:
Although USPTO hired 3,672 patent examiners from the beginning of
fiscal year 2002 through fiscal year 2006, the patent examination
workforce increased by only 1,644 because 2,028 patent examiners either
left the agency or moved to other positions. More specifically, during
this time, 1,643 patent examiners left the agency, and 385 patent
examiners were either transferred or promoted out of the position of
patent examiner. As shown in figure 2, of the 1,643 patent examiners
who left the agency, approximately 70 percent had been at USPTO for
less than 5 years, and nearly 33 percent had been at USPTO for less
than 1 year.[Footnote 11]
Figure 2: Patent Examiner Attrition by Years of Experience, Fiscal
Years 2002 through 2006:
[See PDF for image]
Source: USPTO.
Note: In each fiscal year, the number of patent examiners at USPTO for
less than 5 years is inclusive of those at USPTO for less than 1 year.
[End of figure]
The attrition of patent examiners who were at the agency for less than
5 years is a significant loss for USPTO for a variety of reasons.
First, because these less experienced patent examiners are primarily
responsible for making the initial decision on patent applications,
which is the triggering event that removes applications from the
backlog, attrition of these staff affects USPTO's ability to reduce the
patent application backlog. Second, because patent examiners require 4
to 6 years of on-the-job experience before they become fully proficient
in conducting patent application reviews, when these staff leave USPTO
the agency loses as much as 5 years of training investment in them.
Third, the continuous churning of so many new patent examiners makes
the overall workforce less experienced. As a result, the more
experienced patent examiners who have the ability to examine more
applications in less time have to instead devote more of their time to
supervising and training the less experienced staff, thereby further
reducing the overall productivity of the agency. Finally, these
workforce losses affect the agency's supervisory capacity, because they
reduce the pool of potential supervisory patent examiners for the
future and therefore negatively affect USPTO's ability to increase its
capacity and ultimately its hiring goals.
USPTO Management Links Attrition to Employees' Personal Reasons, while
Patent Examiners Link It to the Agency's Production Goals:
We found that USPTO management and patent examiners disagree
significantly on the reasons for the attrition that is occurring at the
agency. According to USPTO management, personal reasons are the primary
reasons that cause patent examiners to leave the agency.[Footnote 12]
Some of these reasons include the following:
˛ The nature of the work at USPTO does not fit with the preferred
working styles of some patent examiners such as those with engineering
degrees who are looking for more "hands-on" experiences.
˛ Many patent examiners enter the workforce directly out of college and
are looking to add USPTO to their résumés and move on to another job
elsewhere rather than build a career at the agency, otherwise known as
the "millennial problem."
˛ Patent examiners may choose to leave the area, as opposed to choosing
to leave the agency, because their spouse transfers to a position
outside of the Washington, D.C., area; the cost of living is too high;
or the competition is too high for entry into the Washington, D.C.,
area graduate and postgraduate programs for those patent examiners who
would like to pursue higher education.
USPTO management told us that the agency is taking steps to help
address these issues through efforts such as developing a recruitment
tool to better assess applicant compatibility with the agency's work
environment; targeting midcareer professionals during the recruitment
process; and considering the creation of offices located outside the
Washington, D.C., area that would provide lower cost-of-living
alternatives for employees.
While union officials agreed that in some cases personal reasons, such
as the high cost of living in the Washington, D.C., area, may lead to
attrition among patent examiners, they believe that attrition at USPTO
can be primarily attributed to the unrealistic production goals that
the agency sets for patent examiners.[Footnote 13] Specifically, union
officials explained that the production goals do not allow adequate
time for patent examiners to do their work, especially in light of the
increased scrutiny and quality initiatives implemented by management.
They told us that the production goals have created a "sweat shop
culture" within the agency that requires patent examiners to do more in
less time and has therefore been a significant contributor to patent
examiners' decisions to leave USPTO. To emphasize this concern, the
union joined the Staff Union of the European Patent Office and other
international patent examiner organizations in April 2007 to sign a
letter declaring that the pressures on patent examiners around the
world have reached such a level that in the absence of serious
measures, intellectual property worldwide would be at risk. The letter
recommended, among other things, an increase in the time patent
examiners have to review patent applications.
According to our survey of patent examiners, 67 percent, regardless of
their tenure with the agency, agree with union officials that the
agency's production goals are among the primary reasons they would
consider leaving USPTO. Moreover, we estimated that 62 percent of
patent examiners are very dissatisfied or generally dissatisfied with
the time allotted by USPTO to achieve their production goals. According
to our survey, 50 percent of patent examiners are also very
dissatisfied or generally dissatisfied with the way in which the
agency's production goals are calculated, and a number of respondents
noted that the production goals are outdated, have not changed in 30
years, and some technologies for which they evaluate applications had
not even been discovered at the time the agency's production goals were
set. When asked for suggestions on how to improve the production
system, 59 percent of patent examiners felt that the system needs to be
reevaluated, including altering the production goals to allow more time
for patent examiners to conduct their reviews.
USPTO employees who participated in OPM's 2006 Federal Human Capital
Survey reported similar results.[Footnote 14] Specifically, 89 percent
of the respondents, comprising both patent examiners and managerial/
supervisory employees, reported that they believe the work they do is
important.[Footnote 15] However, respondents were almost evenly split
on whether their workload was reasonable, with 41 percent considering
their workload reasonable and 40 percent considering it unreasonable.
We and others have noted in the past that the assumptions the agency
uses to calculate patent examiner production goals were established in
the 1970s and have not since been adjusted to reflect changes in
science and technology. Moreover, the agency uses these production
goals to establish its overall performance goals, such as the number of
first actions to be completed in a given year.[Footnote 16] However,
the agency has missed its projections for first actions completed in 4
of the last 5 years, as shown in figure 3, which further suggests that
these goals may be unrealistic.
Figure 3: Estimated and Actual First Actions Completed, Fiscal Years
2002 through 2006:
[See PDF for image]
Source: USPTO.
[End of figure]
Furthermore, according to our survey, patent examiners are discontented
with the actions they have to take in order to meet their production
goals. According to our survey, during the last year, 70 percent of
patent examiners worked unpaid overtime to meet their production goals,
some more than 30 extra hours in a 2-week period. The percentage of
patent examiners who worked unpaid overtime increased with the length
of tenure they had with the agency. We estimated that while 46 percent
of patent examiners who had been at USPTO from 2 to 12 months had to
work unpaid overtime to meet their production goals; 79 percent of
patent examiners with over 5 years' experience at the agency had to put
in unpaid overtime. In addition, we estimated that 42 percent of patent
examiners had to work to meet production goals while on paid annual
leave during the past year. The percentage of patent examiners working
while on paid leave also was significantly higher for those with a
longer tenure at the agency. We estimated that 18 percent of patent
examiners who had been at USPTO from 2 to 12 months worked to meet
their production goals while on paid leave, and 50 percent of patent
examiners with over 5 years' experience at the agency had to work to
meet production goals while on annual leave. As one respondent to our
survey explained, "Vacation time means catch up time." Another
respondent summed up the situation as follows: "I know that the
production goals are set to keep us motivated in order to help get over
the backlog but if a majority of examiners cannot meet those goals
without relying on unpaid overtime or annual leave then something is
wrong with the system." We estimated that because of the amount of
unpaid overtime that they have to put into meeting their production
goals, 59 percent of patent examiners consider it one of the primary
reasons they would choose to leave USPTO, and 37 percent identified the
amount of time they must work during paid leave to meet their
production goals among the primary reasons they would leave the agency.
This extensive amount of unpaid overtime does not appear to be a
concern to USPTO management, even though the agency has not been able
to meet its productivity goals for the last 4 years. When we queried
USPTO management about the agency's policy regarding patent examiners
working unpaid overtime to meet their production goals, the Deputy
Commissioner for Patent Operations told us, "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."
Retention Incentives and Flexibilities Provided over the Last 5 Years
Generally Align with the Primary Reasons Patent Examiners Identified
for Staying at USPTO:
From 2002 to 2006, USPTO offered a number of different retention
incentives and flexibilities in three main areas to improve the
retention of patent examiners, as shown in table 1.[Footnote 17]
Table 1: Retention Incentives and Flexibilities Provided by USPTO by
Category, and Other Retention Efforts, Fiscal Years 2002 through 2006:
Category: Compensation;
Retention incentive, flexibility, or other: Performance bonuses;
Retention incentive, flexibility, or other: Flexible spending accounts
that allow patent examiners to set aside funds for expenses related to
health care and care for dependents;
Retention incentive, flexibility, or other: Law school tuition
reimbursement program[A];
Retention incentive, flexibility, or other: Noncompetitive promotion to
the full performance level;
Retention incentive, flexibility, or other: Recruitment bonuses of up
to $9,900.
Retention incentive, flexibility, or other: Special pay rate[B];
Retention incentive, flexibility, or other: Transit subsidy program.
Category: Enhanced work environment; Retention incentive, flexibility,
or other: Casual dress policy;
Retention incentive, flexibility, or other: Flexible work schedules,
including the ability to schedule hours off during the day;
Retention incentive, flexibility, or other: Improved management
communication techniques (e.g., town hall meetings, online chats with
the Commissioner);
Retention incentive, flexibility, or other: No-cost health screenings
at an on-site health unit staffed with a registered nurse and part-time
physician;
Retention incentive, flexibility, or other: On-site child care and
fitness centers;
Retention incentive, flexibility, or other: Creation of a committee to
organize recreational and social activities, such as a basketball
tournament and Halloween party;
Retention incentive, flexibility, or other: Work at home
opportunities;
Category: Other retention efforts;
Retention incentive, flexibility, or other: Additional training for
managers, such as workshops on intergenerational issues and technical
training for patent examiners.
Retention incentive, flexibility, or other: Formation of a Patents
Retention Council to focus on patent examiner retention issues at
USPTO;
Retention incentive, flexibility, or other: A survey given to potential
applicants during the recruiting process to better assess applicant
compatibility with the USPTO work environment;
Source: GAO analysis of USPTO information.
[A] USPTO provided the law school tuition program for 2 years between
fiscal years 2002 and 2006.
[B] The special pay rate was approved in 2006 and went into effect in
January 2007.
[End of table]
According to USPTO management officials, the three most effective
retention incentives and flexibilities that they have offered are the
special pay rates, the bonus structure, and opportunities to work from
remote locations.
˛ Special pay rate. In November 2006, USPTO received approval for an
across-the-board special pay rate for patent examiners that can be more
than 25 percent above federal salaries for comparable positions. For
example, in 2007, a patent examiner at USPTO earning $47,610 would earn
$37,640 in a similar position at another federal agency in the
Washington, D.C., area.
˛ Bonus structure. The agency awards bonuses at the end of each fiscal
year to patent examiners who exceed their production goals by at least
10 percent. For example, according to USPTO, 60 percent of eligible
patent examiners who exceeded production goals by 10 percent or more
received a bonus in fiscal year 2006. As table 2 shows, USPTO awarded
4,645 bonuses totaling over $10.6 million to patent examiners in fiscal
year 2006.[Footnote 18]
˛ Opportunities to work from remote locations. In fiscal year 2006,
approximately 20 percent of patent examiners participated in the
agency's telework program, which allows patent examiners to conduct
some or all of their work away from their official duty station 1 or
more days per week. In addition, when USPTO began a hoteling program in
fiscal year 2006, approximately 10 percent of patent examiners
participated in the program, which allows some patent examiners to work
from an alternative location.[Footnote 19]
Table 2: Number of Bonuses and Bonus Amounts USPTO Awarded, and Number
of Patent Examiners Participating in the Telework Program in Fiscal
Years 2002 through 2006:
Number of bonuses[A];
2002: 4,877;
2003: 4,839;
2004: 5,015;
2005: 4,567;
2006: 4,645.
Bonus amount (dollars in millions);
2002: $10.3;
2003: $10.9;
2004: $11.5;
2005: $10.9;
2006: $10.6.
Patent examiners in telework program;
2002: Not applicable[B];
2003: 800;
2004: 345;
2005: 1014;
2006: 999.
Source: USPTO.
[A] Up to three types of bonuses may be awarded to one patent examiner
in a fiscal year, one of which may be awarded twice per fiscal year.
[B] USPTO did not offer a telework program in fiscal year 2002.
[End of table]
According to the results of our survey, patent examiners generally
identified compensation-related retention incentives and USPTO's
efforts to enhance the work environment as among the most important
reasons for staying with the agency. (See app. II for more detailed
information on the questions included in and the results of our
survey.) Specifically, as table 3 shows, patent examiners ranked
current total pay, flexible work schedules, the hoteling program, and
federal benefits as among the primary reasons they would choose to stay
at USPTO. Similarly, 51 and 87 percent of the USPTO employees who
participated in OPM's 2006 Federal Human Capital Survey reported that
they were satisfied with their pay and alternative work schedules,
respectively.
Table 3: Patent Examiners' Views on Compensation-Related and Enhanced
Work Environment Incentives and Flexibilities in Decreasing Order of
Importance:
USPTO incentives and flexibilities offered to patent examiners: Current
total pay (excluding benefits);
Estimated percentage of patent examiners who identified these
incentives and flexibilities as reasons to stay with the agency: 58.
USPTO incentives and flexibilities offered to patent examiners: The
availability of the flexible work schedule program;
Estimated percentage of patent examiners who identified these
incentives and flexibilities as reasons to stay with the agency: 49.
USPTO incentives and flexibilities offered to patent examiners: The
availability of a hoteling program;
Estimated percentage of patent examiners who identified these
incentives and flexibilities as reasons to stay with the agency: 38.
USPTO incentives and flexibilities offered to patent examiners: Current
federal benefits;
Estimated percentage of patent examiners who identified these
incentives and flexibilities as reasons to stay with the agency: 30.
USPTO incentives and flexibilities offered to patent examiners: The
availability of a teleworking program;
Estimated percentage of patent examiners who identified these
incentives and flexibilities as reasons to stay with the agency: 17.
USPTO incentives and flexibilities offered to patent examiners: The
recent implementation of a special pay rate increase;
Estimated percentage of patent examiners who identified these
incentives and flexibilities as reasons to stay with the agency: 16.
USPTO incentives and flexibilities offered to patent examiners:
Opportunities for career advancement;
Estimated percentage of patent examiners who identified these
incentives and flexibilities as reasons to stay with the agency: 15.
USPTO incentives and flexibilities offered to patent examiners: The
ability to be promoted to the next GS level;
Estimated percentage of patent examiners who identified these
incentives and flexibilities as reasons to stay with the agency: 14.
USPTO incentives and flexibilities offered to patent examiners: The
availability of the law school tuition program;
Estimated percentage of patent examiners who identified these
incentives and flexibilities as reasons to stay with the agency: 10.
USPTO incentives and flexibilities offered to patent examiners: The
availability of monetary awards;
Estimated percentage of patent examiners who identified these
incentives and flexibilities as reasons to stay with the agency: 5.
USPTO incentives and flexibilities offered to patent examiners: The
casual dress policy;
Estimated percentage of patent examiners who identified these
incentives and flexibilities as reasons to stay with the agency: 4.
USPTO incentives and flexibilities offered to patent examiners: Access
to an on-site fitness center;
Estimated percentage of patent examiners who identified these
incentives and flexibilities as reasons to stay with the agency: 4.
USPTO incentives and flexibilities offered to patent examiners: The
availability of a transit subsidy program;
Estimated percentage of patent examiners who identified these
incentives and flexibilities as reasons to stay with the agency: 2.
USPTO incentives and flexibilities offered to patent examiners: The
availability of on-site child care;
Estimated percentage of patent examiners who identified these
incentives and flexibilities as reasons to stay with the agency: 1.
USPTO incentives and flexibilities offered to patent examiners: The
availability of flexible spending accounts (i.e., the program that
allows you to pay for eligible out-of-pocket health care and dependent
care expenses with pretax dollars);
Estimated percentage of patent examiners who identified these
incentives and flexibilities as reasons to stay with the agency: 1.
USPTO incentives and flexibilities offered to patent examiners: The
availability of an on-site health unit;
Estimated percentage of patent examiners who identified these
incentives and flexibilities as reasons to stay with the agency: 0.
USPTO incentives and flexibilities offered to patent examiners:
Activities offered by the Work-Life Committee;
Estimated percentage of patent examiners who identified these
incentives and flexibilities as reasons to stay with the agency: 0.
Source: GAO survey.
Note: To determine the estimated percentages in this table, we included
the total number of times patent examiners identified a particular
retention incentive and flexibility as one of the three most important
reasons they would choose to stay at USPTO.
[End of table]
Conclusion:
Despite its efforts to hire an increasing number of patent examiners
annually and implement a number of retention incentives and
flexibilities over the last 5 years, USPTO has had limited success in
retaining new patent examiners. While many of the measures implemented
generally align with the primary reasons that patent examiners would
stay with the agency, these efforts have not been enough to prevent the
agency from losing one patent examiner for nearly every two that it has
hired, and especially troubling is the high loss of patent examiners
who have been with the agency for less than 5 years. Although USPTO
management does not agree, the root of this high level of attrition
appears to be the stress resulting from the agency's outdated
production goals. To meet the agency's production goals, most patent
examiners, regardless of their tenure with the agency, have had to work
unpaid overtime or work during paid leave time, and therefore consider
this to be a primary reason for leaving USPTO. Because the production
goals appear to be undermining USPTO's efforts to hire and retain a
highly qualified workforce, we believe the agency will continue to be
limited in its ability to meet the increasing demand for U.S. patents
and reduce the growth of the patent application backlog, and ultimately
may be unable to fulfill its mission of ensuring U.S. competitiveness.
Recommendation for Executive Action:
We recommend that the Secretary of Commerce direct the Under Secretary
of Commerce for Intellectual Property and Director of the U.S. Patent
and Trademark Office to undertake a comprehensive evaluation of the
assumptions that the agency uses to establish patent examiner
production goals and revise those assumptions as appropriate.
Agency Comments and Our Evaluation:
We provided a draft of this report to the Department of Commerce and
USPTO for review and comment. In its comments, the Department of
Commerce agreed with our findings, conclusions, and recommendation and
agreed that the agency's hiring efforts are not sufficient to reduce
the patent application backlog. In light of this issue, the Department
of Commerce stated that USPTO is implementing various initiatives
designed to increase the productivity of the agency that will result in
a more efficient and focused patent examination process. Once USPTO
determines the effect of these initiatives on patent examiner
productivity, it will reevaluate the assumptions used to establish
patent examiner production goals. The agency also provided technical
comments that we have incorporated as appropriate. The Department of
Commerce's letter is included in appendix II.
As agreed with your office, unless you publicly announce the contents
of this report earlier, we plan no further distribution until 30 days
from the report date. At that time, we will send copies to interested
congressional committees and Members of Congress and the Secretary of
Commerce. We also will make copies available to others upon request. In
addition, the report will be available at no charge on the GAO Web site
at [hyperlink, http://www.gao.gov].
If you or your staff have questions about this report, please contact
me at (202) 512-3841 or mittala@gao.gov. Contact points for our Offices
of Congressional Relations and Public Affairs may be found on the last
page of this report. GAO staff who made key contributions to this
report are listed in appendix IV.
Sincerely yours,
Ms. Anu K. Mittal:
Director, Natural Resources and Environment:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
To determine the U.S. Patent and Trademark's (USPTO) process for
developing annual hiring estimates and the relationship these estimates
have to the patent application backlog, we analyzed patent examiner
data that USPTO extracts from the National Finance Center, and patent
application data from the agency's Patent Application Locating and
Monitoring (PALM) system,[Footnote 20] from fiscal years 2002 through
2006, and projections of that data through fiscal year 2012.[Footnote
21] Specifically, these data included actual end of fiscal year numbers
from 2002 through 2006 and estimates from fiscal years 2002 through
2012 for patent examination workforce, patent examiners hired, patent
examiners lost to attrition, first actions, received patent
applications, and the patent application backlog. USPTO provided the
majority of these data to us in the form of USPTO's fiscal years 2002
through 2008 Budget Requests of the President of the United States. The
budget requests for fiscal years 2003 through 2005 contained the hiring
estimates for each of those years as well as those projected for an
additional 4 years, and the actual number of patent examiners hired for
fiscal years 2002 and 2003.[Footnote 22] USPTO provided the remaining
estimates in an interview, and the remaining actual numbers hired by
extracting that information from the National Finance Center into Excel
documents.
We assessed the reliability of the patent examiner data USPTO extracted
from the National Finance Center and the agency's PALM system and
determined that they were acceptable for our purposes. We assessed the
reliability of patent examiner data by comparing the data to patent
examiner data in the Central Personnel Data File. To assess the
reliability of the PALM system, we interviewed the Acting Director of
the Office of Patent Audit and Evaluation. We also interviewed USPTO's
Administrator of the Office of Patent Resources Administration to gain
an understanding of the process through which USPTO identifies hiring
estimates and the role of the backlog in that process. In addition, we
reviewed reports by other organizations, such as the National Academy
of Public Administration, relating to USPTO's workforce planning
process. We reviewed the Office of Personnel Management's (OPM)
workforce planning guidance and interviewed officials from OPM's Human
Capital Assessment and Accountability Framework Office to develop
criteria to assess USPTO's workforce planning process. We compared
USPTO's process for developing annual hiring estimates to OPM's
workforce planning strategies and other best practice information we
received from OPM's Human Capital Assessment and Accountability
Framework Office in order to determine if USPTO's process for
identifying annual hiring estimates was consistent with OPM's
recommended workforce planning strategies.
To determine the extent to which hiring patent examiners has been
offset by attrition at USPTO over the last 5 years, we analyzed patent
examiner workforce, hiring, and attrition data from this time period as
described above. In addition, USPTO provided attrition data by years of
experience for each of those years in separate documents derived from
the National Finance Center. Specifically, we compared the total number
of patent examiners hired in each of the last 5 years to the total
workforce growth and the total patent examiner attrition in that time.
To determine the factors that may contribute to patent examiners'
decisions to leave the agency, we conducted a Web-based survey of a
stratified random sample of 1,420 current patent examiners.[Footnote
23] To address this objective, we had to rely on the views of current
patent examiners because USPTO does not maintain contact information
for patent examiners that have left the agency, and we could not
identify any organizations that maintain this information for USPTO
staff. Through the survey instrument, we gathered patent examiners'
views on satisfaction with various aspects of working at USPTO, the
time worked to meet production goals, and reasons they would choose to
stay with or leave the agency. In addition, we asked for their views on
ways to improve the production system.
The target population for our sample consists of patent examiners who
were employed by USPTO as of November 22, 2006, and were still employed
as of the survey closing date, February 28, 2007. We selected our
sample from a study population composed of all USPTO patent examiners
as of November 22, 2006, and we asked agency officials to provide the
names, e-mail addresses, and length of time at USPTO for patent
examiners at the agency on that date. Patent examiners who were hired
after November 22, 2006, are not represented in our sample. Similarly,
patent examiners who left or retired from the agency between November
22, 2006, and February 28, 2007, might be sampled but would not be a
part of our target population (and therefore are considered out of the
scope of our survey). From that list, we selected a random sample of
patent examiners,[Footnote 24] stratified by the length of time they
would have been at the agency at the beginning of the survey period in
late January 2007.[Footnote 25] Our sample consisted of 1,420 patent
examiners, and we obtained complete survey responses from 1,129 of
them, for an overall response rate of about 80 percent. Table 4
summarizes population size, sample size, and disposition of sample
cases for each of these strata.
Table 4: Summary of Patent Examiner Population and Survey Sample by
Stratum:
Stratum[A]: 1. Patent examiners: 2-12 months;
Population: 1,007;
Sample: 430;
Respondents: 342;
Out of scope[A]: 0;
Response rate: 80%.
Stratum[A]: 2. Patent examiners: 1-5 years;
Population: 1,506;
Sample: 480;
Respondents: 385;
Out of scope[A]: 0;
Response rate: 80%.
Stratum[A]: 3. Patent examiners: 5+ years;
Population: 2,305;
Sample: 510;
Respondents: 402;
Out of scope[A]: 8;
Response rate: 80%.
Stratum[A]: Total;
Population: 4,818;
Sample: 1,420;
Respondents: 1,129;
Out of scope[A]: 8;
Response rate: 80%.
Source: GAO.
[A] From the initial notification, we identified 8 sampled individuals
who were outside the target population. Individuals were determined to
be outside the target population for reasons such as they performed a
function other than patent examination or they had since left the
agency.
[End of table]
All sample surveys are subject to sampling error--that is, the extent
to which the survey results differ from what would have been obtained
if the whole population had been observed. Each patent examiner in the
study population has a known nonzero probability of being selected, and
the data for each respondent are appropriately weighted to account
statistically for all patent examiners in that stratum, including those
that were not selected. Because we followed a probability procedure
based on random selections, our sample is only one of a large number of
samples that we might have drawn. Since each sample could have provided
different estimates, we expressed our confidence in the precision of
our particular sample's results as a 95 percent confidence interval.
This is the interval that would contain the actual population value for
95 percent of the samples we could have drawn. As a result, we are 95
percent confident that each of the confidence intervals based on the
survey includes the true values in the sample population. Estimates
based on this survey allow us to project our results to all patent
examiners at USPTO with a 95 percent level of confidence. All
percentage estimates in this report have a 95 percent confidence
interval within plus or minus 5 percentage points of the estimate
itself. For example, our survey estimates that 42 percent of patent
examiners worked while on annual leave during the past year, and we are
95 percent confident that the actual proportion of patent examiners
working while on leave during this period is within 5 percentage points
of 42, i.e., between 37 and 47 percent. All reported comparisons of
patent examiner groups for a particular survey question are
statistically significant with a probability of 0.05.
In addition to the reported sampling errors, as previously indicated,
the practical difficulties of conducting any survey may introduce
errors, commonly referred to as nonsampling errors. For example,
differences in how a particular question is interpreted, the
information sources available to respondents, or the types of sample
members who do not respond can introduce unwanted variability into the
survey results. Our estimation method assumes that nonrespondents are
missing at random. If characteristics of respondents are different from
those of nonrespondents on key items, it could introduce a bias not
accounted for in our analysis. We took extensive steps in questionnaire
development, data collection, and the editing and analysis of the
survey data to minimize nonsampling errors. For example, the survey was
developed by a GAO survey specialist in conjunction with subject matter
experts, and then reviewed by a second independent survey specialist.
In addition, we pretested the survey with patent examiners. During
these pretests, we asked the patent examiners to complete the survey as
they would when they received it. We then interviewed the respondents
to ensure that (1) the questions were clear and unambiguous, (2) the
terms used were precise, (3) the survey did not place an undue burden
on the patent examiners completing it, and (4) the survey was
independent and unbiased. We also provided a copy of the survey to
USPTO officials and representatives from the patent examiner union--the
Patent Office Professional Association (POPA)--to gain their thoughts
on the four previously mentioned criteria. On the basis of the feedback
from the pretests and our discussions with agency officials and union
representatives, we revised the questions, as appropriate.
Additionally, the statistical programs that produced our survey
estimates, including estimates of categories derived from content
analysis, were reviewed by a second independent programmer to ensure
accuracy in the logic and syntax of the program. Finally, to ensure
security and data integrity, we provided all participants with a user
name and a personal password that allowed them to access and complete
the survey. No one else could access that survey or edit its data. To
reduce survey nonresponse, we sent out e-mail reminder messages to
encourage them to complete the survey. We activated the survey and
informed respondents of its availability on January 25, 2007, and
allowed respondents access to the survey through February 28, 2007.
We conducted a computer-enabled content analysis to analyze a key open-
ended survey question soliciting respondents' suggestions for
improvements to the production system. Two reviewers collaboratively
developed content categories based on survey responses, and then
independently assessed and coded each survey response into those
categories. In cases where disagreements among the two reviewers
regarding the coding of responses into content categories were found,
all disagreements were resolved through reviewer discussion.
Ultimately, there was 100 percent agreement between the reviewers.
In addition to the survey mentioned above, we spoke with USPTO
officials, representatives from POPA, and an official from the American
Intellectual Property Law Association, a national bar association of
lawyers involved in fields of law affecting intellectual property, to
gain their perspectives on why patent examiners leave the agency.
To determine the extent to which the retention incentives and
flexibilities that USPTO provides align with patent examiners' reasons
for staying with the agency, we spoke with USPTO officials, union
representatives, and an official from the American Intellectual
Property Law Association to gain their perspectives on the
effectiveness of the retention incentives and flexibilities at USPTO.
We also analyzed USPTO policies and information regarding the agency's
retention incentives and flexibilities. In addition, we used the Web-
based survey described above to obtain patent examiners' views on the
reasons they would choose to stay at the agency.
We conducted our work from August 2006 through July 2007 in accordance
with generally accepted government auditing standards.
[End of section]
Appendix II: Selected Survey Results:
The following tables contain summary results of selected questions from
our survey of patent examiners at USPTO. For each question reported
below, the estimated percentage is presented. All percentage estimates
have a 95 percent confidence interval within plus or minus 5 percentage
points of the estimate itself. These tables do not include summary-
estimate data for the demographic questions and do not include the
results from any open-ended questions.
Table 5: Q6. Over the past 12 months, on average, about how much
voluntary/uncompensated overtime have you worked per biweek to meet
your production goal?:
Number of hours: Less than 1 hour;
Estimated percentage: 5.
Number of hours: 1-10 hours;
Estimated percentage: 62.
Number of hours: 11-20 hours;
Estimated percentage: 23.
Number of hours: 21-30 hours;
Estimated percentage: 5.
Number of hours: More than 30 hours;
Estimated percentage: 5.
Source: GAO survey.
Note: Respondents to this question had self-identified in a previous
question as having worked voluntary/uncompensated overtime to meet
their production goals.
[End of table]
Table 6: Q8. Over the past 12 months, on average, about how much annual
leave have you used per quarter to meet your production goal?:
Number of hours: Less than 1 hour;
Estimated percentage: 2.
Number of hours: 1-10 hours;
Estimated percentage: 47.
Number of hours: 11-20 hours;
Estimated percentage: 29.
Number of hours: 21-30 hours;
Estimated percentage: 12.
Number of hours: More than 30 hours;
Estimated percentage: 10.
Source: GAO survey.
Note: Respondents to this question had self-identified in a previous
question as having used annual leave to meet their production goals.
[End of table]
Table 7: Q10a. How important, if at all, are each of the following
factors as reasons for you to stay with USPTO?:
Very important or important reason to stay:
Reason: a. Your current total pay (excluding benefits);
Estimated percentage: 77.
Reason: b. Your current federal benefits;
Estimated percentage: 77.
Reason: c. The availability of monetary awards;
Estimated percentage: 45.
Reason: d. The recent implementation of a special pay rate increase;
Estimated percentage: 80.
Reason: e. The caliber of your current supervision;
Estimated percentage: 58.
Reason: f. The extent to which resources, such as mentors, are
available to answer your questions;
Estimated percentage: 44.
Reason: g. Your opportunities for career advancement;
Estimated percentage: 59.
Reason: h. Your ability to be promoted to the next GS level;
Estimated percentage: 67.
Reason: i. The extent to which this job fits your work style;
Estimated percentage: 71.
Reason: j. Your production goals;
Estimated percentage: 17.
Reason: k. The amount of paid leave that you must use to meet
production goals;
Estimated percentage: 10.
Reason: l. The amount of voluntary/uncompensated overtime that you must
work to meet production goals;
Estimated percentage: 9.
Reason: m. The amount of review of your work (i.e., for quality
purposes);
Estimated percentage: 14.
Reason: n. Activities offered by the Work-Life Committee (e.g., 4 on 4
basketball tournament, trip to Atlantic City, but NOT activities run by
the PTO Society or your Technology and/or Art Center);
Estimated percentage: 11.
Reason: o. The availability of the law school tuition program;
Estimated percentage: 43.
Reason: p. The availability of a hoteling program (i.e., the
opportunity for examiners to work full-time from an off-site location);
Estimated percentage: 79.
Reason: q. The availability of a teleworking program (i.e., the
opportunity for examiners to work some hours from an off-site
location);
Estimated percentage: 77.
Reason: r. The availability of the flexible work schedule program;
Estimated percentage: 94.
Reason: s. The availability of flexible spending accounts (i.e., the
program that allows you to pay for eligible out-of-pocket health care
and dependent care expenses with pretax dollars);
Estimated percentage: 42.
Reason: t. The availability of a transit subsidy program;
Estimated percentage: 58.
Reason: u. The availability of an on-site health unit;
Estimated percentage: 37.
Reason: v. The casual dress policy;
Estimated percentage: 55.
Reason: w. The availability of on-site child care;
Estimated percentage: 26.
Reason: x. Access to an on-site fitness center;
Estimated percentage: 47.
Reason: y. Other--Please specify below;
Estimated percentage: 34.
Source: GAO survey.
[End of table]
Table 8: Q10b. How important, if at all, are each of the following
factors as reasons for you to leave USPTO?:
Very important or important reason to leave:
Reason: a. Your current total pay (excluding benefits);
Estimated percentage: 8.
Reason: b. Your current federal benefits;
Estimated percentage: 3.
Reason: c. The availability of monetary awards;
Estimated percentage: 8.
Reason: d. The recent implementation of a special pay rate increase;
Estimated percentage: 0.
Reason: e. The caliber of your current supervision;
Estimated percentage: 11.
Reason: f. The extent to which resources, such as mentors, are
available to answer your questions;
Estimated percentage: 12.
Reason: g. Your opportunities for career advancement;
Estimated percentage: 14.
Reason: h. Your ability to be promoted to the next GS level;
Estimated percentage: 9.
Reason: i. The extent to which this job fits your work style;
Estimated percentage: 10.
Reason: j. Your production goals;
Estimated percentage: 52.
Reason: k. The amount of paid leave that you must use to meet
production goals;
Estimated percentage: 49.
Reason: l. The amount of voluntary/uncompensated overtime that you must
work to meet production goals;
Estimated percentage: 61.
Reason: m. The amount of review of your work (i.e., for quality
purposes);
Estimated percentage: 27.
Reason: n. Activities offered by the Work-Life Committee (e.g., 4 on 4
basketball tournament, trip to Atlantic City, but NOT activities run by
the PTO Society or your Technology and/or Art Center);
Estimated percentage: 2.
Reason: o. The availability of the law school tuition program;
Estimated percentage: 1.
Reason: p. The availability of a hoteling program (i.e., the
opportunity for examiners to work full-time from an off-site location);
Estimated percentage: 0.
Reason: q. The availability of a teleworking program (i.e., the
opportunity for examiners to work some hours from an off-site
location);
Estimated percentage: 0.
Reason: r. The availability of the flexible work schedule program;
Estimated percentage: 0.
Reason: s. The availability of flexible spending accounts (i.e., the
program that allows you to pay for eligible out-of-pocket health care
and dependent care expenses with pretax dollars);
Estimated percentage: 0.
Reason: t. The availability of a transit subsidy program;
Estimated percentage: 1.
Reason: u. The availability of an on-site health unit;
Estimated percentage: 0.
Reason: v. The casual dress policy;
Estimated percentage: 1.
Reason: w. The availability of on-site child care;
Estimated percentage: 1.
Reason: x. Access to an on-site fitness center;
Estimated percentage: 0.
Reason: y. Other--Please specify below;
Estimated percentage: 39.
Source: GAO survey.
[End of table]
Table 9: Q11. Looking at the list of reasons in question 10, what are
the top three reasons why you would choose to stay with USPTO?:
Reason: a. Your current total pay (excluding benefits);
Estimated percentage: 58.
Reason: b. Your current federal benefits;
Estimated percentage: 30.
Reason: c. The availability of monetary awards;
Estimated percentage: 5.
Reason: d. The recent implementation of a special pay rate increase;
Estimated percentage: 16.
Reason: e. The caliber of your current supervision;
Estimated percentage: 9.
Reason: f. The extent to which resources, such as mentors, are
available to answer your questions;
Estimated percentage: 3.
Reason: g. Your opportunities for career advancement;
Estimated percentage: 15.
Reason: h. Your ability to be promoted to the next GS level;
Estimated percentage: 14.
Reason: i. The extent to which this job fits your work style;
Estimated percentage: 15.
Reason: j. Your production goals;
Estimated percentage: 1.
Reason: k. The amount of paid leave that you must use to meet
production goals;
Estimated percentage: 0.
Reason: l. The amount of voluntary/uncompensated overtime that you must
work to meet production goals;
Estimated percentage: 0.
Reason: m. The amount of review of your work (i.e., for quality
purposes);
Estimated percentage: 0.
Reason: n. Activities offered by the Work-Life Committee (e.g., 4 on 4
basketball tournament, trip to Atlantic City, but NOT activities run by
the PTO Society or your Technology and/or Art Center);
Estimated percentage: 0.
Reason: o. The availability of the law school tuition program;
Estimated percentage: 10.
Reason: p. The availability of a hoteling program (i.e., the
opportunity for examiners to work full-time from an off-site location);
Estimated percentage: 38.
Reason: q. The availability of a teleworking program (i.e., the
opportunity for examiners to work some hours from an off-site
location);
Estimated percentage: 17.
Reason: r. The availability of the flexible work schedule program;
Estimated percentage: 49.
Reason: s. The availability of flexible spending accounts (i.e., the
program that allows you to pay for eligible out-of-pocket health care
and dependent care expenses with pretax dollars);
Estimated percentage: 1.
Reason: t. The availability of a transit subsidy program;
Estimated percentage: 2.
Reason: u. The availability of an on-site health unit;
Estimated percentage: 0.
Reason: v. The casual dress policy;
Estimated percentage: 4.
Reason: w. The availability of on-site child care;
Estimated percentage: 1.
Reason: x. Access to an on-site fitness center;
Estimated percentage: 4.
Reason: y. Other--Please specify below;
Estimated percentage: 4.
Source: GAO survey.
Note: To determine the estimated percentages in this table, we included
the total number of times patent examiners identified a particular
retention incentive and flexibility as one of the three most important
reasons they would choose to stay at USPTO. Percentages total more than
100 percent because respondents selected three reasons each.
[End of table]
Table 10: Q12. Looking at the list of reasons in question 10, what are
the top three reasons that would cause you to consider leaving USPTO?:
Reason: a. Your current total pay (excluding benefits);
Estimated percentage: 16.
Reason: b. Your current federal benefits;
Estimated percentage: 4.
Reason: c. The availability of monetary awards;
Estimated percentage: 6.
Reason: d. The recent implementation of a special pay rate increase;
Estimated percentage: 1.
Reason: e. The caliber of your current supervision;
Estimated percentage: 13.
Reason: f. The extent to which resources, such as mentors, are
available to answer your questions;
Estimated percentage: 8.
Reason: g. Your opportunities for career advancement;
Estimated percentage: 15.
Reason: h. Your ability to be promoted to the next GS level;
Estimated percentage: 8.
Reason: i. The extent to which this job fits your work style;
Estimated percentage: 11.
Reason: j. Your production goals;
Estimated percentage: 67.
Reason: k. The amount of paid leave that you must use to meet
production goals;
Estimated percentage: 37.
Reason: l. The amount of voluntary/uncompensated overtime that you must
work to meet production goals;
Estimated percentage: 59.
Reason: m. The amount of review of your work (i.e., for quality
purposes);
Estimated percentage: 26.
Reason: n. Activities offered by the Work-Life Committee (e.g., 4 on 4
basketball tournament, trip to Atlantic City, but NOT activities run by
the PTO Society or your Technology and/or Art Center);
Estimated percentage: 1.
Reason: o. The availability of the law school tuition program;
Estimated percentage: 1.
Reason: p. The availability of a hoteling program (i.e., the
opportunity for examiners to work full-time from an off-site location);
Estimated percentage: 2.
Reason: q. The availability of a teleworking program (i.e., the
opportunity for examiners to work some hours from an off-site
location);
Estimated percentage: 1.
Reason: r. The availability of the flexible work schedule program;
Estimated percentage: 2.
Reason: s. The availability of flexible spending accounts (i.e., the
program that allows you to pay for eligible out-of-pocket health care
and dependent care expenses with pretax dollars);
Estimated percentage: 0.
Reason: t. The availability of a transit subsidy program;
Estimated percentage: 0.
Reason: u. The availability of an on-site health unit;
Estimated percentage: 0.
Reason: v. The casual dress policy;
Estimated percentage: 1.
Reason: w. The availability of on-site child care;
Estimated percentage: 0.
Reason: x. Access to an on-site fitness center;
Estimated percentage: 0.
Reason: y. Other--Please specify below;
Estimated percentage: 7.
Source: GAO survey.
Note: To determine the estimated percentages in this table, we included
the total number of times patent examiners identified a particular
retention incentive and flexibility as one of the three most important
reasons they would choose to leave USPTO. Percentages total more than
100 percent because respondents selected three reasons each.
[End of table]
[End of section]
Appendix III: Comments from the Department of Commerce:
The Deputy Secretary Of Commerce:
Washington, D.C. 20230:
August 15, 2007:
Ms. Anu K. Mittal:
Director, Natural Resources and Environment:
U.S. Government Accountability Office:
441 G Street, N.W.:
Washington, D.C. 20548:
Dear Ms. Mittal:
Thank you for the opportunity to comment on the Government
Accountability Office (GAO) draft report GAO-07-1102 entitled, Hiring
Efforts Are Not Sufficient to Reduce the Patent Application Backlog.
The Department of Commerce (DOC) and the United States Patent and
Trademark Office (USPTO) appreciate the effort your staff made in
reviewing the USPTO's annual hiring estimates, patent examiner
attrition, and ongoing retention efforts.
The report is a good assessment of the progress the USPTO is making in
finding better ways to hire, train, and retain our patent examiners. We
agree with the report's finding that hiring efforts are not sufficient
to reduce the patent application backlog. While hiring is a critical
component of the USPTO's plan, Under Secretary Dudas has stated that
hiring alone is simply not enough to keep pace with the growth of
patent applications. The USPTO's Strategic Plan released this year
places a strong emphasis on increasing productivity in the USPTO and in
patent systems throughout the world by leveraging the work that is
being done in other offices, by applicants themselves and from
interested public parties to help the patent examiners in their jobs.
Of interest are:
* Claims-Continuations initiative, which will require applicants to
provide additional information to assist in the examination process if
they submit more than five independent claims or more than 25 total
claims in an application, and will require applicants to provide a
justification for third or subsequent continuing application.
* Information Disclosure Statement (IDS) initiative, which will require
applicants who submit more than a threshold number of references or
other documents for consideration by the examiner to explain the
relevance of the reference or other document.
* Alternative (or Markush) Claim initiative, which will require that a
patent claim that defines the invention using alternative language be
directed to a group of alternatives that are sufficiently related so as
to be considered a single invention.
* Applicant Quality Submissions, which if pursued, will require most
applicants to provide the USPTO with an applicant quality submission
and written analysis to assist the examiner in the examination of the
application.
In general, the USPTO agrees with GAO's assessment of the challenges
facing it and GAO's conclusion that hiring efforts alone are not
sufficient to reduce the patent application backlog. The above
initiatives being implemented and those under consideration by the
USPTO will result in a more efficient and focused examination on the
part of the patent examiner. It is anticipated that there will be
efficiencies gained from these initiatives. Once the USPTO determines
the effect of these initiatives on examiner productivity, we will
reevaluate the assumptions that we use to establish examiner production
goals.
I enclose a list of specific technical comments that clarify and/or
correct certain points covered in your report.
Many thanks to Michelle Triestman and Vondalee Hunt who spent many
hours reviewing survey data and talking to USPTO employees. I also
extend my appreciation to you and your team for your dedication to the
highest standards of professionalism in preparing the draft report.
Sincerely,
Signed by:
David A. Simpson:
Enclosure:
[End of section]
Appendix IV: GAO Contact and Staff Acknowledgments:
GAO Contact:
Anu K. Mittal, (202) 512-3841:
Staff Acknowledgments:
In addition to the contact named above, Vondalee R. Hunt (Assistant
Director), Nancy Crothers, Nancy Hess, Stuart Kaufman, Grant Mallie,
Rebecca Shea, Michelle K. Treistman, Lisa Vojta, and Greg Wilmoth made
significant contributions to this report. Scott Derrick and Omari
Norman also contributed to this report.
[End of section]
Footnotes:
[1] USPTO, an agency within the Department of Commerce, consists of two
organizations: one for patents and one for trademarks. This report
focuses on the patent organization.
[2] USPTO assigns patent applications to one of its eight technology
centers for review: (1) Biotechnology and Organic Chemistry; (2)
Chemical and Materials Engineering; (3) Computer Architecture,
Software, and Information Security; (4) Communications; (5)
Semiconductors, Electrical and Optical Systems and Components; (6)
Transportation, Electronic Commerce, Construction, Agriculture,
National Security and License and Review; (7) Mechanical Engineering,
Manufacturing, and Products; and (8) Designs for Articles of
Manufacture.
[3] USPTO tracks two key milestones in the patent application process
to evaluate patent examiners' performance. One milestone is the patent
examiner's initial action on the merits of the case. Most patent
applications are removed from the backlog when this initial action is
made. The other milestone is when the application is allowed,
abandoned, or sent to the Board of Patent Appeals and Interferences.
[4] GAO, Intellectual Property: USPTO Has Made Progress in Hiring
Examiners, but Challenges to Retention Remain, GAO-05-720 (Washington,
D.C.: June 17, 2005).
[5] USPTO includes patent examiners who transfer or are promoted out of
the patent examination workforce to another position within the agency
in its attrition count, in addition to those patent examiners who leave
the agency. This report uses USPTO's inclusive definition of attrition
in order to be consistent with the agency's projections used in this
report, and therefore will be different from USPTO attrition data as
reported by the Office of Personnel Management, which does not include
intra-agency transfers or promotions as part of attrition.
[6] Technology centers specialize in specific areas of science and
engineering.
[7] GAO, Intellectual Property: Information on the U.S. Patent and
Trademark Office's Past and Future Operations, GAO-02-907 (Washington,
D.C.: Aug. 23, 2002).
[8] USPTO's Corporate Plan was submitted with the fiscal year 2002
budget. USPTO's Business Plan was the agency's first 5-year strategic
plan. It was replaced by the 21st Century Strategic Plan after a new
Director decided the Business Plan did not go far enough.
[9] In commenting on a draft of this report, USPTO stated that it uses
a robust forecasting and modeling process to determine the optimal
hiring, staffing, and production levels. This model was evaluated by
the National Academy of Public Administration and determined to be
appropriate. While we acknowledge that USPTO uses this model to
identify optimal hiring levels, we found that the determination of
projected estimates was made on the basis of funding levels and the
capacity to support additional staff.
[10] We are including both supervisory patent examiners and primary
examiners as supervisors for the purpose of this report.
[11] These percentages include patent examiners who transferred or were
promoted out of the patent examination workforce, but remained at
USPTO, and represent approximately 19 percent of patent examiner
attrition from fiscal year 2002 through 2006.
[12] The term "primary reasons" in this report refers to the top three
reasons patent examiners leave the agency provided by USPTO management,
as well as the top three or more statistically significant reasons
provided by patent examiners in our survey.
[13] Union officials also identified a recent decision by USPTO
management to track when patent examiners enter and leave the building
as another reason why patent examiners would choose to leave the
agency. Union officials declined to rank the reasons they believe
patent examiners leave USPTO, preferring instead that we rely on patent
examiner survey results.
[14] OPM's Federal Human Capital Survey is a tool that measures
employees' perceptions of whether, and to what extent, conditions that
characterize successful organizations are present in their agencies.
[15] USPTO respondents to the Federal Human Capital Survey included
employees from both the patent organization, which accounts for about
76 percent of the agency's resources, and the trademark organization.
[16] USPTO predicts first actions by multiplying the number of patent
examiners in the workforce by production goals.
[17] GAO reported on key practices for effective use of human capital
flexibilities in GAO, Human Capital: Effective Use of Flexibilities Can
Assist Agencies in Managing Their Workforces, GAO-03-2 (Washington,
D.C.: Dec. 6, 2002).
[18] USPTO may award up to three types of bonuses to one patent
examiner in a fiscal year.
[19] Patent examiners who qualify for hoteling are assigned USPTO
computer hardware and are not assigned permanent office space but share
space when it is necessary for them to come into the USPTO offices.
[20] PALM is an internal USPTO system that contains current patent
application status information.
[21] USPTO officials explained that the agency does not store patent
examiner data on site, but relies on access to the National Finance
Center to obtain that information when necessary.
[22] According to USPTO, the data requirements for the budget requests
can change and USPTO provides the required data to the Office of
Management and Budget accordingly. As a result, not all of the
information we requested was available in these documents.
[23] While we also surveyed supervisory patent examiners, we did not
include their responses in our analysis and estimates because we
determined during the course of our review that they perform a very
different function than nonsupervisory patent examiners. Consequently
supervisory patent examiners have different job-related concerns and
different reasons than nonsupervisory patent examiners for choosing to
stay with or leave USPTO. Because our report focuses on why staff
performing the patent examiner function stay with or leave the agency,
we focused only on the responses of nonsupervisory patent examiners.
[24] We defined patent examiners as those responsible for reviewing
utility, plant, and reissue (UPR) patent applications.
[25] For example, a person newly hired at the time the population frame
was created in late November 2006 would have been at the agency 2
months by late January 2007. This is why the shortest tenure displayed
in table 4 is 2 months.
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