Over the past five years, PTO primarily has based hiring on available funding and its institutional capacity to support additional staff, rather than focusing on the existing backlog or expected workload of patent applications, the report (GAO-07-1102) stated. As a result, it is unlikely that the agency will be able to reduce the growing backlog of patent applications simply through hiring, GAO said.
The watchdog agency surveyed 1,420 patent examiners and received an 80 percent response rate. The review found that while PTO is hiring as many new patent examiners as its budget can support, attrition is offsetting progress. From 2002 to 2006, for example, one patent examiner left the PTO for nearly every two the agency hired.
PTO management has said that examiners leave because the job is not a good fit or for family reasons, the report stated.
The patent examiners surveyed described a heavy workload. Sixty-seven percent reported that the targeted number of applications they must complete is unrealistic.
"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," the report said.
Robert Budens, president of the Patent Office Professional Association, argued that the workloads PTO imposes on examiners are overwhelming, especially given that many of the technologies that exist today weren't around in 1976. "The kind of attitude on the part of PTO management is unrealistic," he said, "and there's no intention whatsoever of giving examiners more time to review applications."
Seventy percent of patent examiners surveyed reported working unpaid overtime during the past year in order to meet production goals. GAO estimated that 42 percent of examiners had to use paid leave to meet production goals within the last year. "Vacation time means catch-up time," one examiner said in the report.
The examiners cited the retention incentives and flexibilities provided by PTO as their primary reasons for staying. Between 2002 and 2006, the agency provided special pay rates, performance bonuses, flexible work schedules and a telework program to boost retention, the report said. Last year, the agency awarded 4,645 bonuses to patent examiners, and 999 participated in telework, according to GAO.
The report recommended that the undersecretary of Commerce for intellectual property and the PTO director undertake a comprehensive evaluation of the assumptions the agency uses to establish production goals and review those assumptions as appropriate.
In a response to the report, David Sampson, deputy secretary for the Commerce Department, agreed with GAO's conclusions and recommendations. PTO is implementing various initiatives to increase productivity, he said.
The plans involve a claims-continuations initiative, which will require applicants to provide additional information to help assist in the examination process, Sampson said. The department also will require that applicants who submit additional references or other documents explain their relevance, he said.
"It is anticipated that there will be efficiencies gained from these initiatives," Sampson said. "Once the PTO determines the effect of these initiatives on examiner productivity, we will re-evaluate the assumptions that we use to establish examiner production goals."
But Budens argued that PTO's new initiatives are inefficient because they essentially reduce the time of an examiner's review of a patent application by placing more responsibility on the applicant. "The PTO is effectively outsourcing the search of the case to the applicant," he said. "That's the only way we would gain efficiency is by relying on the applicant."