U.S. Patent and Trademark Office
Performance Management Processes Gao ID: GAO-10-946R September 24, 2010The Department of Commerce's U.S. Patent and Trademark Office (USPTO) grants patents that protect innovations ranging from new treatments for diseases to new wireless technology applications. Over the last several years, increases in both the volume and complexity of patent applications have lengthened the time between when an application is submitted and when a final decision is made--referred to as patent pendency--and resulted in a current backlog of over 700,000 applications. For several years, concerns have existed about USPTO's ability to recruit and retain enough qualified patent examiners to reduce this backlog. In 2005 and again in 2007, we identified numerous challenges related to USPTO's ability to modernize its human capital management system and hire and retain a qualified and well-trained patent examination workforce. Recently, USPTO management has also recognized the need for changes in its performance management system and additional training for its employees and managers. In this context, Congress asked us to obtain additional information on the performance management of USPTO's patent examination workforce. Specifically, Congress asked us to describe (1) USPTO's processes for evaluating the performance of supervisory patent examiners (SPE) and patent examiners, and the actions that the agency takes when performance is at an unacceptable level; (2) USPTO's process for promoting patent examiners to the SPE level; and (3) how newly promoted SPEs are assigned to various units and the training they receive throughout their career.
USPTO has similar processes for evaluating SPEs' and patent examiners' performance. However, patent examiners receive additional checks on their performance, and patent examiners and SPEs are rated on different elements. According to USPTO officials, in April 2010, USPTO implemented a revised SPE performance appraisal plan and is currently revising the patent examiner performance appraisal plan, which it expects to implement in 2011. USPTO's processes for addressing unacceptable performance are similar for patent examiners and SPEs, although there are some differences for examiners and SPEs who are newly hired and recently promoted, respectively. For example, those patent examiners in their first 2-years of employment (trial period) can generally be discharged by USPTO for unacceptable performance without first going through a process which includes issuing oral and written warnings, which is required in addressing unacceptable performance in other patent examiners. In addition, during newly promoted SPEs' 1-year probationary period if their performance is unacceptable and they do not improve their performance after receiving a written warning, USPTO may return them to a nonsupervisory patent examiner position and pay grade. USPTO's process for promoting examiners to supervisory positions relies largely on examinations and five key criteria, including their ability to supervise and perform administrative duties, and their knowledge of scientific and technical matters. From fiscal years 2005 through 2009, 1,247 people applied and 337 were promoted at USPTO to the GS-15 SPE position. USPTO generally assigns newly promoted SPEs to clusters of specific related patent technologies, known as "art units," on the basis of the SPEs technical expertise and requires management and supervisory training throughout their career. Most new SPEs are generally assigned to art units on the basis of the technology they are most familiar with, but according to USPTO officials this scenario is not always possible. The agency requires that new SPEs take introductory and specialized supervisory training, and requires all SPEs to take additional training throughout their career. In addition, USPTO recently implemented a leadership development program that allows SPEs and others to assess their leadership skills and set goals to develop or improve their skills.
GAO-10-946R, U.S. Patent and Trademark Office: Performance Management Processes
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GAO-10-946R:
United States Government Accountability Office:
Washington, DC 20548:
September 24, 2010:
The Honorable Barbara Mikulski:
Chairwoman:
The Honorable Richard C. Shelby:
Ranking Member:
Subcommittee on Commerce, Justice, Science and Related Agencies:
Committee on Appropriations:
United States Senate:
Subject: U.S. Patent and Trademark Office: Performance Management
Processes:
The Department of Commerce's U.S. Patent and Trademark Office (USPTO)
grants patents that protect innovations ranging from new treatments
for diseases to new wireless technology applications. Over the last
several years, increases in both the volume and complexity of patent
applications have lengthened the time between when an application is
submitted and when a final decision is made--referred to as patent
pendency--and resulted in a current backlog of over 700,000
applications. For several years, concerns have existed about USPTO's
ability to recruit and retain enough qualified patent examiners to
reduce this backlog. In 2005 and again in 2007, we identified numerous
challenges related to USPTO's ability to modernize its human capital
management system and hire and retain a qualified and well-trained
patent examination workforce.[Footnote 1] Recently, USPTO management
has also recognized the need for changes in its performance management
system and additional training for its employees and managers. In this
context, you asked us to obtain additional information on the
performance management of USPTO's patent examination workforce.
[Footnote 2] Specifically, you asked us to describe (1) USPTO's
processes for evaluating the performance of supervisory patent
examiners (SPE) and patent examiners, and the actions that the agency
takes when performance is at an unacceptable level; (2) USPTO's
process for promoting patent examiners to the SPE level; and (3) how
newly promoted SPEs are assigned to various units and the training
they receive throughout their career.
To describe USPTO's processes for evaluating the performance of SPEs
and patent examiners, and the actions that USPTO takes when
performance is at an unacceptable level, we reviewed the most recent
documents on which USPTO's policies and guidance for performance
management are based, including the Office of Personnel Management's
(OPM) performance management regulations; the Department of Commerce's
1995 General Workforce Performance Appraisal System; policies based on
the agency's past practices; and agreements between USPTO and the
Patent Office Professional Association (POPA), the independent union
that represents professional USPTO employees. We also interviewed
officials from USPTO's Office of the Commissioner of Patents, Office
of Human Resources, and Office of the Chief Administrative Officer. To
describe USPTO's process for promoting patent examiners to the SPE
level, we reviewed data on USPTO's promotion process, which we
obtained from the Office of Human Resources, and interviewed officials
from that office. To describe how newly promoted SPEs are assigned to
various units and the training they receive, we reviewed data from
USPTO's Office of the Commissioner of Patents on the number of newly
promoted SPEs and where they have been placed in the organization over
the last 5 years and interviewed USPTO Office of Human Resources
officials on the training offered for SPEs. Because USPTO management
is currently implementing changes in its performance appraisal system
and training for PTO managers, we are restricting our review to
describing current practices and planned changes. Although we have
identified key practices for effective performance management through
our past work,[Footnote 3] we did not evaluate USPTO's system against
these practices given that the system is currently being revised.
We conducted our work from December 2009 through September 2010 in
accordance with all sections of GAO's Quality Assurance Framework that
are relevant to our objectives. The framework requires that we plan
and perform the engagement to obtain sufficient and appropriate
evidence to meet our stated objectives and to discuss any limitations
in our work. We believe that the information and data obtained, and
the analysis conducted, provide a reasonable basis for any findings
and conclusions in this product.
In Summary:
USPTO has similar processes for evaluating SPEs' and patent examiners'
performance. However, patent examiners receive additional checks on
their performance, and patent examiners and SPEs are rated on
different elements. According to USPTO officials, in April 2010, USPTO
implemented a revised SPE performance appraisal plan and is currently
revising the patent examiner performance appraisal plan, which it
expects to implement in 2011. USPTO's processes for addressing
unacceptable performance are similar for patent examiners and SPEs,
although there are some differences for examiners and SPEs who are
newly hired and recently promoted, respectively. For example, those
patent examiners in their first 2-years of employment (trial period)
can generally be discharged by USPTO for unacceptable performance
without first going through a process which includes issuing oral and
written warnings, which is required in addressing unacceptable
performance in other patent examiners. In addition, during newly
promoted SPEs' 1-year probationary period if their performance is
unacceptable and they do not improve their performance after receiving
a written warning, USPTO may return them to a nonsupervisory patent
examiner position and pay grade. USPTO's process for promoting
examiners to supervisory positions relies largely on examinations and
five key criteria, including their ability to supervise and perform
administrative duties, and their knowledge of scientific and technical
matters. From fiscal years 2005 through 2009, 1,247 people applied and
337 were promoted at USPTO to the GS-15 SPE position. USPTO generally
assigns newly promoted SPEs to clusters of specific related patent
technologies, known as "art units," on the basis of the SPEs technical
expertise and requires management and supervisory training throughout
their career. Most new SPEs are generally assigned to art units on the
basis of the technology they are most familiar with, but according to
USPTO officials this scenario is not always possible. The agency
requires that new SPEs take introductory and specialized supervisory
training, and requires all SPEs to take additional training throughout
their career. In addition, USPTO recently implemented a leadership
development program that allows SPEs and others to assess their
leadership skills and set goals to develop or improve their skills.
Background:
Protecting intellectual property rights and encouraging technological
progress are important for ensuring the current and future
competitiveness of the United States. USPTO, under the direction of
the Under Secretary of Commerce for Intellectual Property and Director
of USPTO, helps protect the nation's competitiveness by granting
patents for a wide range of innovations. USPTO consists of two
organizations: one for patents and one for trademarks. This report
focuses on the patent organization, which accounts for approximately
81 percent of the agency's resources. USPTO's patent organization has
two primary functions. First, the organization protects and
disseminates patent information--for example, information on issued
patents and most patent applications. Such information allows other
inventors to improve upon the original inventions and to apply for
their own patent. Second, the organization grants patents--an
exclusive right granted for a fixed period of time to someone who
invents or discovers any new and useful process, machine, manufacture,
or composition of matter, or any new and useful improvement thereof.
To obtain a patent, inventors--or more likely 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. According to USPTO officials, the agency assigns patent
applications to one of its nine technology centers for review: (1)
Biotechnology and Organic Chemistry; (2) Chemical and Materials
Engineering; (3) Computer Architecture and Software; (4) Network,
Multiplexing, Cable and Security; (5) Communications; (6)
Semiconductors, Electrical, and Optical Systems and Components; (7)
Transportation, Construction, Electronic Commerce, Agriculture,
National Security, and License and Review; (8) Mechanical Engineering,
Manufacturing, and Products; and (9) Designs for Articles of
Manufacture. Each technology center is managed by one or more group
directors and is organized into smaller "art units"--clusters of
specific related patent technologies. For example, the Communications
Technology Center includes art units for digital communications, audio
components, cellular telephony, and radio and satellite
communications. The art units are staffed by one SPE and several
patent examiners. Grade levels for the patent examiner position range
from the general schedule (GS) pay plan for grades GS-5 to GS-15; SPEs
are GS-15s. According to a USPTO Office of Human Resources official,
as of March 2010, USPTO had 423 SPEs and 6,046 patent examiners.
Patent examiners' primary responsibility is to review 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 inventions 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,
such as 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 or not.
USPTO has a system for determining the amount of time in which a
patent examiner is expected to complete an examination and the credit
earned for each completed stage of an examination. Patent examiners
receive credit, called "counts," for each first action and disposal
they complete. They are assigned production goals on the basis of the
number of production units--each consisting 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. In
February 2010, USPTO revised the count system to, among other things,
give patent examiners more time to complete first actions.
According to USPTO officials, SPEs are expected to evaluate patent
examiners' performance based, in part, on the production goals
established by the technology center in which the patent examiner
works. Also, according to USPTO criteria for SPE performance, SPEs
must be able to effectively train examiners; review work products;
make decisions on hiring, retention, and promotion of junior
examiners; conduct the requisite performance management activities
associated with ratings, recognition, and potential adverse actions;
and provide mentoring to ensure the development of the examiners in
their unit. In addition, SPEs may have to assist examiners in
assessing patent applications and making decisions on whether to grant
a patent.
According to USPTO officials, USPTO's performance management processes
for the SPE and patent examiner workforce are based on several
sources, including OPM regulations and the Department of Commerce's
1995 General Workforce Performance Appraisal System (GWPAS). In
addition, USPTO has periodically issued performance management
policies that are based on the agency's past practices, as well as
USPTO agreements with POPA. According to a USPTO official, in 2006,
the Department of Commerce established a new performance management
system that was to replace the 1995 GWPAS. However, according to this
same official, USPTO continues to follow the 1995 GWPAS because prior
agreements between USPTO and POPA, as well as prior agreements between
USPTO and other unions that represent USPTO staff, have not been
renegotiated to implement the new system. The official stated that the
agency has decided to follow the 1995 GWPAS until it can issue an
administrative order implementing a USPTO employee performance
management system that includes, among other things, a new performance
appraisal system that better meets the agency's needs. In 2006, USPTO
drafted this order, as well as a Performance Management Program
Handbook that is to be a guide on USPTO's performance management
processes.[Footnote 4] As of September 2010, USPTO had not issued the
order or published the handbook.
USPTO Uses Structured Processes for Evaluating SPEs' and Patent
Examiners' Performance and Addressing Unacceptable Performance:
USPTO has similar processes for evaluating SPEs' and patent examiners'
performance. However, the agency's processes for addressing
"unacceptable" performance differ somewhat between SPEs and patent
examiners.
USPTO's Processes for Evaluating SPEs' and Patent Examiners'
Performance Are Similar:
USPTO's current performance appraisal processes for SPEs and patent
examiners involve three distinct stages: (1) performance planning, (2)
progress review, and (3) performance appraisal and recognition.
Records pertaining to these three stages are maintained in each SPE's
and patent examiner's individual Classification and Performance
Management Record, referred to as the performance appraisal plan.
According to USPTO officials, for SPEs, during the performance
planning stage of the appraisal process, a technology center's group
director (1) identifies the performance elements on which the SPEs
will be rated--for example, effective leadership; (2) provides in
writing the objective of the elements, the major activities or results
needed to accomplish the performance element, and performance
standards used to evaluate the employee's performance of each element;
and (3) discusses the elements and performance standards with the
SPEs. In 2009, SPEs were rated on several elements, including quality
of examination products and processes; accountability for personal
property of their art unit; timely and efficient processing of patent
applications; productivity; and effective leadership, including
employee satisfaction.[Footnote 5] Generally, performance standards
for SPEs are based on a methodology that ensures that the performance
rating reflects the type of patent application technology examined
within the SPE's technology center, as well as the resources available
to examine the applications. This methodology, called "fair share,"
takes into account the differences in the levels of complexity of the
patent applications that the various technology centers receive and
may vary the rating criteria accordingly for the centers each year as
needed.
According to USPTO officials, in April 2010, USPTO implemented a
revised SPE performance appraisal plan as a result of recommendations
from a USPTO task force formed to make the performance appraisal plan
better reflect key priorities of the agency, including improved
quality of patent application examinations, reduced patent pendency,
and improved responsiveness to applicants, as well as to better
reflect the varied roles and responsibilities of SPEs. A major change
to the SPE performance appraisal plan is the elevation of
responsibilities, such as coaching and mentoring, which had previously
been included under the "effective leadership" element, to a separate
element. A USPTO official stated that emphasizing SPE coaching and
mentoring of patent examiner staff should help improve patent
examiners skills and thereby contribute to the reduction of patent
pendency. In addition, according to this official, USPTO combined the
timeliness and productivity elements into a "pendency reduction"
element, added a new element to address responsiveness to applicants,
and removed the accounting for personal property element.[Footnote 6]
According to USPTO officials and the agency's performance appraisal
plan guidance, during the progress review stage of the performance
appraisal process, group directors are to discuss with the SPEs (1)
their progress in accomplishing the elements, (2) whether the
performance appraisal plan needs to be adjusted, and (3) any
performance deficiencies and recommendations on how to improve them.
SPEs receive progress reviews at the midpoint of the fiscal year, and
this information is recorded in their performance appraisal plans.
In the performance appraisal and recognition stage of the process,
group directors rate SPEs' overall performance during the fiscal year.
The group director determines a rating level for each performance
element--(5) outstanding, (4) commendable, (3) fully successful, (2)
marginal, or (1) unacceptable--and scores each element by multiplying
its weight by the rating level. Each element is weighted to reflect
agency priorities--for example, the coaching and mentoring element
accounts for 15 percent of the rating. According to a USPTO Office of
Human Resources official, weights are set by the technology centers
and are consistent for SPEs throughout the patent organization. The
overall performance rating for the SPE is then determined by totaling
the scores of the individual performance elements. Finally, according
to a USPTO official, monetary bonuses may be awarded to some SPEs. In
the past, SPE bonuses were based solely on ratings; however, for the
past several years bonuses have been awarded based on additional
factors, including production rate and timeliness of the SPE's entire
art unit, and the SPE's leadership contributions both within the
technology center and outside it. However, because of budgetary
constraints, SPEs did not receive bonuses in fiscal year 2009.
According to this official, USPTO planned to award bonuses in fiscal
year 2010.
According to USPTO officials, the performance appraisal process for
patent examiners is similar to that of the SPEs. For example, the SPE
evaluates the patent examiner in specific performance elements,
provides the examiner with a progress review at the midpoint of the
fiscal year, and using the performance standards, determines a rating
for each, weights the individual rating scores, and calculates an
overall performance rating at the end of the fiscal year. According to
a USPTO Office of Human Resources official, patent examiners, however,
receive quarterly checks on performance by their SPE, as well as the
formal midpoint progress review.[Footnote 7] In addition, patent
examiners are rated on different elements than SPEs at the end of the
fiscal year, including performance of patent examining functions,
patent examining productivity goal achievement, workflow management,
and customer service.[Footnote 8] Several of these elements include
specific productivity goals and timeliness requirements tied to
USPTO's count system; these goals and requirements become more
stringent as the patent examiner's grade level increases. In addition,
some elements on which higher-grade patent examiners are rated, such
as "patentability determination," do not apply to lower-grade level
examiners. Moreover, the patent examiner appraisal process differs
from the SPE appraisal process in that SPEs have performance appraisal
plan guidelines to help them evaluate and score patent examiners'
performance.[Footnote 9] According to USPTO officials, a new joint
management and labor task force is updating the patent examiners'
performance appraisal plan, and USPTO expects to implement the revised
plan by 2011. A USPTO official said that after the performance
appraisal plan is updated, USPTO will update the guidelines.
USPTO's Processes for Addressing Unacceptable Performances by Patent
Examiners and SPEs Differ in Some Aspects:
USPTO's processes for addressing unacceptable performance are similar
for patent examiners and SPEs, although there are some differences for
examiners and SPEs who are newly hired and recently promoted,
respectively. According to USPTO officials, the process for addressing
unacceptable patent examiner performance involves a series of actions
that can take place as a result of quarterly checks or at midpoint
reviews, or at the final performance appraisal review of the year.
First, a patent examiner with "unacceptable" performance in one or
more critical elements receives an oral warning from the SPE requiring
that the performance be improved to at least the marginal level within
about one-quarter of a year. If, at that time, the examiner's
performance for a particular element is still considered unacceptable,
the SPE issues the patent examiner a written warning, also referred to
as a performance improvement plan. This plan provides information on
the examiner's performance, establishes a plan of action to improve
it, and grants another improvement period of about one-quarter of a
year. According to a USPTO Office of Human Resources official, most
patent examiners improve their performance after receiving an oral
warning and do not get a written warning. Figure 1 shows the number of
oral and written warnings issued to patent examiners for unacceptable
performance in one or more critical elements from 2005 through 2009.
Figure 1: Number of Oral and Written Warnings Issued to Patent
Examiners, Calendar Years 2005-2009:
[Refer to PDF for image: vertical bar and line graph]
Calendar year: 2005;
Oral Warnings: 290;
Written Warnings: 81;
Total patent examiner staff: 4,245.
Calendar year: 2006;
Oral Warnings: 213;
Written Warnings: 46;
Total patent examiner staff: 4,876.
Calendar year: 2007;
Oral Warnings: 297;
Written Warnings: 46;
Total patent examiner staff: 5,495.
Calendar year: 2008;
Oral Warnings: 413;
Written Warnings: 68;
Total patent examiner staff: 6,162.
Calendar year: 2009;
Oral Warnings: 446;
Written Warnings: 74;
Total patent examiner staff: 6,191.
Source: USPTO.
Note: According to a USPTO Office of Human Resources official, some
patent examiners have received more than one oral and written warning
during the 5-year period. A total of 953 patent examiners received
1,659 oral warnings, while 265 patent examiners received 315 written
warnings during this period.
[End of figure]
In addition, according to a USPTO Office of Human Resources official,
patent examiners who receive oral warnings often improve their
performance so that by the end of the fiscal year, when overall
performance ratings are given, they do not receive an overall
"unacceptable" performance rating. For example, a total of 953 patent
examiners received oral warnings from calendar years 2005 through
2009. During fiscal years 2005 through 2009, 476 overall unacceptable
performance ratings were issued to patent examiners.[Footnote 10]
According to USPTO documentation we reviewed, if, during an
improvement period, a patent examiner does not raise his or her
performance to at least the marginal level in the element or elements
rated unacceptable, or if the patent examiner's performance improves
but becomes unacceptable again within a year of the beginning of the
improvement period, USPTO management may propose that the patent
examiner either receive a reduction in grade or be removed from the
agency. According to a USPTO Office of Human Resources official, the
agency usually proposes removal rather than reduction in grade. When a
patent examiner receives notification of a proposed removal for
unacceptable performance, the examiner has 15 days to respond orally
and in writing either accepting or refuting the proposed removal
action. The examiner has the right to obtain representation through
POPA or an attorney and may request an extension of the 15-day
response time from USPTO management.
According to USPTO officials, the Deputy Commissioner of Patents or
designee reviews proposed removals and decides whether to remove the
examiner from the agency. USPTO is required to give examiners 30-day
advance notice of the proposed removal. According to these officials,
the Deputy Commissioner of Patents usually takes about 60 days to make
decisions on proposed removals. Rather than deciding to remove the
employee, the Deputy Commissioner may decide to allow the examiner to
remain with the agency without taking further action or allow the
examiner to remain but take other actions, including allowing the
examiner to sign an abeyance agreement or settlement agreement. An
abeyance agreement is an agreement between USPTO management and the
patent examiner on mutually agreed terms to resolve the pending
adverse action. An example of the terms would be that, if the examiner
raises his or her performance from unacceptable to fully successful
and maintains that level of performance for at least 2 years, the
patent examiner can retain his or her position. According to a USPTO
Office of Human Resources official, if at any time during the abeyance
period the examiner's performance returns to the unacceptable level,
the USPTO's Deputy Commissioner of Patents will review the case and
determine whether the abeyance agreement has been breached. If the
agreement has been breached, and the Deputy Commissioner of Patents
believes removal is appropriate, the patent examiner will be removed
from the agency and will have no recourse. In addition, according to
this official, under a settlement agreement, the patent examiner may
agree to accept another course of action, such as a move to another
technology center, change to a part-time work schedule, or a reduction
in grade and pay. Under a settlement agreement, patent examiners are
not usually subject to immediate removal if their performance returns
to an unacceptable level. As an alternative to an abeyance or
settlement agreement, management may transfer examiners to another art
unit, reduce their grade level, or issue another written warning in
view of specific facts of the situation.
According to documentation provided by USPTO, from January 2005
through January 2010, USPTO proposed 124 performance-based removals of
patent examiners.[Footnote 11] Of these, 33 patent examiners were
removed from USPTO and 19 decided to resign or retire rather than be
removed. Of the remaining proposed removals, 45 accepted an abeyance
or settlement agreement, 1 was transferred to another unit, 1 received
a reduction in grade, and 5 received additional written warnings. In
20 cases, the Deputy Commissioner of Patents decided that no action
should be taken. A patent examiner who has been removed for
unacceptable performance generally may appeal the decision to the
Merit Systems Protection Board (MSPB), which is responsible for, among
other things, adjudicating employee appeals of removals and demotions
for unacceptable performance.[Footnote 12] If the examiners are
represented by a union, they can either use the grievance and
arbitration process contained in the labor-management contract or
appeal to the MSPB, but not both.
Patent examiners are initially appointed under the Federal Career
Interns Program, which means that they are in a trial period for their
first 2 years of employment.[Footnote 13] Until the examiners complete
their trial period, they do not generally have the same rights as
other patent examiners. Specifically, USPTO may discharge patent
examiners during their trial period for unacceptable performance or
any other permissible reason without issuing an oral or written
warning, and generally, discharged examiners may not appeal the
removal decision to the MSPB. According to a USPTO Office of Human
Resources official, the SPE and the technology center director
generally request a discharge of patent examiners during this period
by notifying the Office of Human Resources, which prepares a discharge
letter that the technology center director issues to the examiner. At
this point, the examiner has the option to resign before close of
business on the discharge date specified in the letter.
According to a USPTO Office of Human Resources official, from January
2005 through December 2009, USPTO issued 320 performance-related
discharge requests for examiners in their trial period. According to
this official, most of the examiners that received a discharge letter
chose to resign rather than be discharged. Figure 2 shows the number
of performance-related discharges of patent examiners during their
trial period and the number that chose to resign rather than be
discharged from 2005 through 2009.
Figure 2: Trial Period Patent Examiner Discharges and Resignations,
Calendar Years 2005-2009:
[Refer to PDF for image: vertical bar and line graph]
Calendar year: 2005;
Discharges: 3;
Resignations: 23;
Total patent examiner staff: 4,245.
Calendar year: 2006;
Discharges: 8;
Resignations: 31;
Total patent examiner staff: 4,876.
Calendar year: 2007;
Discharges: 16;
Resignations: 48;
Total patent examiner staff: 5,495.
Calendar year: 2008;
Discharges: 25;
Resignations: 68;
Total patent examiner staff: 6,162.
Calendar year: 2009;
Discharges: 37;
Resignations: 61;
Total patent examiner staff: 6,191.
Source: USPTO.
[End of figure]
USPTO officials told us that a new examiner's performance is carefully
scrutinized during the trial period. Performance data are collected,
documented, and continuously evaluated, and feedback is frequently
given on job performance, including on areas that need improvement.
USPTO's process for taking action when SPEs' performance is
unacceptable is similar to that for patent examiners. However,
according to an Office of Human Resources official, SPEs do not first
receive oral warnings--only written warnings. Another difference
between the process for examiners and for SPEs is that SPEs who
receive a proposed removal action generally have 10 days to provide a
response rather than the 15 days afforded the patent examiner.
In addition, the process for newly promoted SPEs, who serve a 1-year
supervisory probationary period, is different from that for
experienced SPEs. According to USPTO officials, if the performance of
SPEs in their probationary period is determined to be unacceptable in
one or more critical elements, and they do not improve their
performance, USPTO may return them to a nonsupervisory patent examiner
position and pay grade. USPTO also requires SPEs to sign an agreement
when they are promoted to the SPE position that acknowledges they are
in a 5-year temporary promotion period. Under this agreement, their
promotion can be rescinded at any time during the 5-year period for
such reasons as workload changes or other staffing needs, and they
have no right to appeal. Should an SPE be returned to an examiner
position, he or she may reapply for another SPE position. According to
a USPTO Office of Human Resources official, from January 7, 2007, to
February 14, 2010, 22 SPEs in their 5-year temporary promotion period
returned to being patent examiners.[Footnote 14]
USPTO's Process for Promoting Examiners to Supervisory Positions
Relies Largely on Examinations and Five Key Criteria:
USPTO's Merit Promotion Program outlines the procedures and
responsibilities associated with promotion at USPTO. According to a
USPTO Office of Human Resources official, the agency's SPE promotion
process begins when the Office of Human Resources publishes a vacancy
announcement for the GS-15 SPE position. Once USPTO receives
applications for a specific vacancy announcement, it reviews each
application to ensure that the applicant is eligible for that
position, and then forms a promotion panel--composed of three SPEs or
two SPEs and one group director of a technology center--that evaluates
and scores the applications. With respect to eligibility, according to
this official, USPTO requires candidates for an SPE position to have
at least 1 year of service at the GS-14 level, in addition to
specialized experience such as examining patents in specific art units
dealing with such technologies as electric circuits, semiconductors,
control circuits, printers, fiber optics, and lasers. Candidates must
also meet specific selective factors listed on the vacancy
announcement, including having full signatory authority--the
knowledge, skills, and experience to approve their own as well as
other examiners' patent application reviews. In addition, candidates
must have passed one of three tests to be considered for the SPE
position. Specifically, patent examiners generally take the
Certification Exam when they are at the GS-12 level and applying for
promotion to GS-13. However, candidates at the GS-14 level who have
not taken the Certification Exam must pass the Patent Manager
Candidate Examination, a comprehensive test that evaluates the
cumulative knowledge of each potential candidate. Candidates, such as
attorneys, who are applying for the SPE position, may also meet the
certification requirements by taking the Agent's Exam--a test required
for those seeking to register with the agency to represent a patent
applicant before USPTO. USPTO also requires that candidates meet OPM
qualification requirements for the position, such as relevant
education and experience, as outlined in OPM's Group Coverage
Qualifications Standards for Professional and Scientific Positions.
Some technology centers within USPTO also require academic course work
in specific areas, but a degree dedicated to a specific area is not
required. USPTO officials told us that, in general, examiners have at
least 5 to 7 years of patent evaluation experience before they reach
the GS-14 level at USPTO and can apply for a supervisory position.
According to USPTO officials, in the second step of the process, the
promotion panel scores applicants based on the extent to which they
have (1) the ability to supervise and perform administrative duties;
(2) knowledge of the scientific and technical matters associated with
the patent process; (3) knowledge of legal matters associated with the
patent process; (4) knowledge of USPTO strategic direction, policies,
and programs; and (5) the ability to communicate effectively orally
and in writing. The scores are weighted, with the ability to supervise
and perform administrative duties representing 30 percent of the total
score and each of the other criteria making up 20 percent or less of
the total score. Once scoring has been completed, the applications of
the individuals deemed "best qualified" are forwarded to the selection
official, who is usually the group director of the USPTO technology
center where the vacancy is located. The selecting official cannot be
a member of the panel.
According to a USPTO Office of Human Resources official, from fiscal
years 2005 through 2009, USPTO issued 55 vacancy announcements for SPE
positions, and 1,247 people applied.[Footnote 15] From this number of
applicants, 337 were promoted to the GS-15 SPE position (see figure 3).
Figure 3: Applications and Promotions to SPE, Fiscal Years 2005-2009:
[Refer to PDF for image: vertical bar graph]
Fiscal year: 2005;
Applications for SPE: 343;
Promotions to SPE: 37.
Fiscal year: 2006;
Applications for SPE: 208;
Promotions to SPE: 79.
Fiscal year: 2007;
Applications for SPE: 237;
Promotions to SPE: 107.
Fiscal year: 2008;
Applications for SPE: 262;
Promotions to SPE: 85.
Fiscal year: 2009;
Applications for SPE: 197;
Promotions to SPE: 19.
Source: USPTO.
[End of figure]
USPTO Generally Assigns Newly Promoted SPEs to Art Units on the Basis
of SPEs' Technical Expertise and Requires Management and Supervisory
Training throughout Their Career:
New SPEs are generally assigned to art units on the basis of the
technology they are most familiar with, or what USPTO refers to as the
"best fit." In January 2010, USPTO sent out an e-mail request to all
patent managers, asking those who had been promoted to SPE since
January 2005 to state where in USPTO they were placed after they were
promoted. Of 228 patent managers who responded, 122, or about half,
were placed in art units where they had previously been patent
examiners or where they had a working knowledge of the subject matter.
[Footnote 16] However, according to USPTO officials, this scenario is
not always possible because of production needs and available
vacancies in specific art units. For example, according to the results
of USPTO's inquiry, in the last 5 years, approximately 45 of the 228
respondents were initially placed in an art unit where they did not
have previous work experience or background knowledge of the subject
matter. USPTO officials stated that if conditions require placing SPEs
in an unfamiliar art unit, highly experienced patent examiners are
available to assist them in their new duties, such as in training of
other patent examiners, until they learn the art unit's subject
matter. In addition, according to a USPTO official, 55 respondents
were initially assigned to an 8-month detail at the Patent Training
Academy, where they instructed new patent examiners.[Footnote 17] A
USPTO official said that this detail provides new SPEs with valuable
experience as supervisors before they begin their supervisory duties
in an art unit. For example, it allows them to obtain the experience
of training patent examiners, which is a major responsibility of an
SPE, without the distraction of other management duties such as
dealing with employee and labor relations issues. If SPEs do not do
well on their detail, they are returned to their previous examiner
position and previous grade level. Moreover, according to the survey,
six new SPEs accepted details to other USPTO offices, such as the
Office of General Counsel. After these SPEs completed their details,
which usually lasted 6 months, they moved to an art unit to perform
the work for which they were promoted.
Regarding career training for SPEs, according to USPTO officials, the
agency requires new SPEs to take introductory and specialized
supervisory training. Until recently, the introductory supervisory
training included a series of classroom lectures provided by the
Supervisory Patent Examiner and Classifiers Organization (SPECO).
[Footnote 18] This training was a 40-hour program that included
instruction specific to newly promoted SPEs in areas such as
leadership, management, administrative processes, oversight
responsibilities, and Department of Commerce human capital policies.
USPTO officials stated that the SPECO course curriculum has recently
been revised to reflect comments and suggestions obtained via an
employee survey, and the course name has been changed to "New SPE
Training." USPTO officials told us the new training was implemented by
the Office of Patent Training in July 2010.
In addition, according to USPTO officials, the agency requires all new
SPEs to participate in the USPTO-wide Supervisory Certificate Program
(SCP), which consists of 16 hours of classroom presentations and
discussion sessions. The SCP focuses more specifically on
strengthening generic supervisory skills with modules on such topics
as how to handle difficult people; diversity in the workplace; and
coaching, communication, and time management skills. Other components
of the SCP, such as "Supervisors and EEO," "Performance Management,"
and "Supervisors' Role in Staff Development," are offered as Web-based
modules via the department's Commerce Learning Center. USPTO requires
that new SPEs complete the New SPE Training and SCP training within
the first year after promotion.
In addition to new supervisor training, according to USPTO officials,
all SPEs are required to take other training sessions throughout their
career, such as "Information Technology Security," "Diversity," and
"Feedback on Coaching." An additional mandatory course, "End-of-Year
Case Review Training," focuses on patent cases decided by the courts
during the year that will have a significant impact on how patent
statutes are to be applied during the patent examination process.
USPTO also offers SPEs optional courses, including the "Technical
Center Facilitator Training Workshop," a customized workshop for
supervisors who will provide training or facilitation in their
technology center, and "All Hands Management Training," an annual
meeting for all SPEs and other managers to discuss goals and share
best practices.
According to USPTO officials, the agency has made leadership
development a key cross-cutting strategy for achieving the objectives
of the agency. Developmental and leadership training opportunities are
geared to employees' individual roles and career development needs and
interests. Specifically, USPTO recently implemented its Leadership
Development Program (LDP), which emphasizes leadership as instrumental
in achieving the agency's strategic vision to "innovate, protect,
communicate, share, and inspire while maintaining intellectual
property." The LDP was implemented in two phases--in March 2010, it
became available to new and experienced SPEs, as well as other
management employees, and in June 2010, it became available to all
patent examiners interested in developing their leadership skills. LDP
provides resources for leaders at all levels through a Web site that
allows them to assess their leadership skills and, with input from
their own supervisors, set goals to develop or improve their skills
and plan a course of action to achieve these goals. The LDP Web site
provides links to the Commerce Learning Center to allow supervisors
and senior management officials to take online training or register
for classroom training related to various performance elements. The
site also provides links to other online resources, such as articles
on leadership skills, and enables both program participants and their
supervisors to track participants' progress in achieving their goals.
The LDP coursework is geared toward specific management levels. For
example, coursework for new SPEs--provided in classroom sessions and
online modules--covers basic supervisory skills (e.g., managing
performance and workload, effective hiring, and developing others);
human capital management; financial management; change and conflict
management; and organizational awareness.
Agency Comments:
We provided a draft of this report to the USPTO for review and
comment. USPTO provided technical comments that we incorporated into
the report, as appropriate.
We are sending copies of this report to interested congressional
committees and the Under Secretary of Commerce for Intellectual
Property and Director of USPTO. This report also is available at no
charge on the GAO Web site at [hyperlink, http://www.gao.gov].
If you or your staffs have any questions concerning this report,
please contact me at (202) 512-3841 or ruscof@gao.gov. Contact points
for our Offices of Congressional Relations and Public Affairs may be
found on the last page of this report. Individuals making key
contributions to this report include Tim Minelli, Assistant Director;
Greg Carroll; Nancy Crothers; Karin Fangman; Cindy Gilbert; Sandra
Kerr; Janice Latimer; and Jeanette Soares.
Signed by:
Frank Rusco:
Director, Natural Resources and Environment:
[End of section]
Footnotes:
[1] GAO, Intellectual Property: USPTO Has Made Progress in Hiring
Examiners, but Challenges to Retention Remain, [hyperlink,
http://www.gao.gov/products/GAO-05-720] (Washington, D.C.: June 17,
2005) and U.S. Patent and Trademark Office: Hiring Efforts Are Not
Sufficient to Reduce the Patent Application Backlog, [hyperlink,
http://www.gao.gov/products/GAO-07-1102] (Washington, D.C.: Sept. 4,
2007).
[2] According to USPTO, performance management is the process by which
an agency involves its employees in improving organizational
effectiveness in the accomplishment of the agency's mission and
consists of performance planning, monitoring, and evaluation as well
as employee development and recognition.
[3] GAO, Results-Oriented Cultures: Creating a Clear Linkage between
Individual Performance and Organizational Success, [hyperlink,
http://www.gao.gov/products/GAO-03-488] (Washington, D.C.: Mar. 14,
2003).
[4] According to a USPTO official, the administrative order will be
consistent with OPM's regulations. USPTO officials told us that they
will submit the new performance management system plan to OPM for
approval, but could not provide a timeframe for doing so.
[5] According to a USPTO official, all SPE performance elements are
considered "critical." A critical element is a work assignment or
responsibility to be achieved that is of such importance that
unacceptable performance in that element would result in a
determination that the employee's overall performance was unacceptable.
[6] The accounting for personal property is now a major activity under
the coaching and mentoring element.
[7] According to a USPTO Office of Human Resources official, an SPE
checks the performance of a patent examiner on a quarterly basis, but
unless performance is unacceptable, there is no requirement for a
formal discussion or feedback session with the patent examiner at the
quarterly check.
[8] According to a USPTO official, all elements for patent examiners
are considered critical except the customer service element.
[9] According to USPTO officials, there are no performance appraisal
plan guidelines for directors to use in evaluating SPEs' performance,
in part, because SPEs' duties and activities vary considerably across
art units. These officials told us that for this reason USPTO
performance appraisal plan guidelines would not be helpful.
[10] The number of oral warnings and the number of unacceptable
ratings are not directly comparable because some individuals could
have received multiple unacceptable ratings during this 5-year period.
In addition, the data for oral warnings are in calendar years, while
USPTO collects data on performance ratings only on a fiscal year basis.
[11] USPTO may also propose removals for misconduct, but according to
a USPTO official, this occurs less frequently than proposed
performance-based removals. From January 2005 through December 2009,
USPTO proposed 29 removals for patent examiner misconduct.
[12] An independent, quasi-judicial agency in the executive branch,
MSPB ensures that (1) federal employees are protected against abuses
by their agencies' management; (2) executive branch agencies make
employment decisions in accordance with merit systems principles; and
(3) federal merit systems are kept free of prohibited personnel
practices.
[13] Under the Federal Career Interns Program, individuals are
appointed to a 2-year internship. Upon successful completion of the
internship, the interns may be eligible for permanent placement within
the agency. The 2 years spent in the internship serve as the
employee's trial period.
[14] USPTO does not systematically track the reasons why SPEs may
return to being patent examiners.
[15] A vacancy announcement may contain more than one SPE position.
[16] According to a USPTO official, this e-mail was sent out to all
SPEs included on technical center mailing lists. The USPTO official
was unable to give us an exact number of SPEs that were contacted. As
stated earlier, however, as of March 2010, USPTO had 423 SPEs.
[17] According to the USPTO Web site, the USPTO Patent Training
Academy was established in 2006 to provide comprehensive and
consistent basic training to prepare new hires for patent examiner
careers.
[18] An organization within USPTO, SPECO was formed to, among other
things, increase the efficiency of overall management.
[End of section]
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