Hearing on Examiner Fraud Leaves No Resolution


In mid-September, the House Judiciary Committee held what seemed like it was going to be an oversight hearing to address the allegations of timekeeping fraud by patent examiners made in the Inspector General’s recent report. Prepared statements released in advance of the hearing talked tough, but that was pretty much it. Insofar as getting to the root of the problems identified in the IG report the hearing turned out to be a big, fat nothing.

Congressman Jerrold Nadler (D-NY) (pictured left at the hearing) defended the Office in his prepared remarks, explaining that there were flaws with the methodology of the IG study, which make the conclusions unreliable. For example, it is entirely possible that patent examiners were indeed working while they were not logged into the Patent Office computer systems. After all, examination is a job that requires a lot of reading and contemplation, much of which might occur without being logged into the server. Of course, that, at best, means there is no way to know whether patent examiners are working or not, which is why the IG report recommended the sensible step of requiring patent examiners to log into the Office computer systems whenever they are working.

But how can any entity operate without actually knowing whether their employees are working? At the very least, the USPTO needs to determine how to better monitor patent examiners. This is particularly important at a time when the Office is engaging in patent quality initiatives and many applicants and patent practitioners believe that they are being blamed by the Office for low patent quality. There are some patent examiners that produce very low-quality work, and it seems that the Office is incapable of knowing when or how much any examiner is working. At a minimum, better controls need to be put in place if the Office wants to address patent quality in a fair and balanced manner.

In any event, the House Judiciary Committee talked tough in written remarks but then didn’t get very tough at all with USPTO Director Michelle Lee. Lee was allowed to explain away the allegations contained in the IG report with little or no push back. Of course, it is at least a little unfair to blame Director Lee for the problems with recalcitrant patent examiners. Even if everyone in senior management were in complete agreement that certain patent examiners needed to be fired, it would be nearly impossible to terminate anyone past their probationary period. Indeed, it is more difficult to fire a federal government worker, particularly a federal government unionized worker, than to fire a tenured professor at a university. For that, we have the federal bureaucracy to blame, not the Patent Office or anyone in particular. But that means the Patent Office is largely left to operate hoping that those past their probationary period remain committed to their jobs.

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