just_n_examiner (just_n_examiner) wrote,

Pendency Problems

There was a semi-interesting article in January's JPTOS about how one might go about addressing the pendency problems at the Office.

In short, the author proposed the following:

The USPTO should lessen quality criteria that require review of a primary examiner's office actions, because the resulting lower allowance rate necessarily increases pendency. Basically, the author's point is that (1) resources (examiners) are being diverted away from examining and to reviewing other examiner's actions, and (2) the reviews are slowing the rate of allowances and thus prolonging prosecution (and so increasing pendency).

I've got problems with this proposal. I don't know the exact number of examiners working in QA, but I'd be surprised if it is that significant (although I could be wrong). The author believes that pendency and quality are necessarily inversely related, which is true to a certain extent, but I hesitate to agree that it's a good idea to neglect one to benefit the other. The Office has always had to strike a balance between responding to critics who point out the shortcomings in the quality of examination and critics of the time it takes to get a patent issued.

Make changes, such as making law school tuition benefits available after only one year at the Office (instead of the current two years), that will help with examiner retention, since losing examiners exacerbates pendency problems.

Examiner retention would certainly go a long way towards helping with pendency. More senior examiners obviously produce more than newer examiners, so it is in everyone's interest to try to keep examiners around the Office long enough to become more senior examiners. There are probably more effective ways to address this problem than changing law school tuition benefits, though. For me, job satisfaction goes a long way, which means give me the tools and the time to do my job the way it should be done, and I'm happy.

Change the production system to encourage examiners to promptly process amendments by awarding examiners one-half count for the first amendment processed per balanced disposal, meaning that a balanced disposal would amount to 2.5 counts instead of the current 2.

I've never had a whole lot of problems motivating myself to do amendments, especially given the workflow implications of letting amendments slide. There has been talk around the blogs of basing production on actions per balanced disposal, which might be a step in the right direction. I personally think that perhaps actions per ultimate disposal (meaning either final abandonment, examiner's answer or patent issue) might work even better.

Make it easier for examiners to be promoted to a GS-15 examining position (as opposed to a management position). This would keep more examiners in high-production positions, instead of removing them from examining altogether.

Personally, I'm not sure how well this would work. Sure, it would be nice for examiners to have easier access to a GS-15 examining position. Currently, you need to fulfill some fairly specific requirements (some of which involve documenting graduate degree-level work) in order to attain a GS-15 examining position. If I remember correctly, there are three 'flavors' of GS-15 positions: generalist, expert, and a third which I don't remember off the top of my head. One of them allows the examiner to keep their current GS-14 production level, but the other two require even higher production.

Truthfully, I don't think it would be a worthwhile trade off for me. Production requirements are onerous enough where I am, and more money wouldn't make higher production requirements worth it.

Also, from the people I've spoken with, I believe that the path to SPE-dom is seen much more as an escape from the production system than it is a path to a GS-15 salary. It is unlikely (my opinion only) that easier attainment of a GS-15 examining position will be an attractive alternative to those primaries who are applying for SPE positions.

Change the current structure of art units to include 25-30 examiners each (instead of the current 10-20). The rationale here is that the current crop of new examiners are going through eight months of training and so should require less supervision when they are released to their art units, so one SPE should be able to manage more of them. This would keep more primary examiners examining instead of moving to SPE positions.

Tough one here. I don't disagree with the sentiment to go with fewer management positions to keep more primaries in the examining corps. I do see, though, how stretched the SPEs currently seem to be, and wonder how well this idea would work. It would be likely, I believe, that were this strategy to be adopted, then even more of the direct supervisory functions of the SPEs (specifically, supervising newer examiners) would be passed along to primaries, which would presumably somewhat offset the productivity gains of keeping more primaries examining instead of moving to management.

Change the way applications are distributed to prevent examiners from cherry-picking easy cases and putting off examining the tougher applications.

This has never been a real problem to my experience. There was a time when some SPEs would routinely docket hundreds of applications to examiners at a time, but I haven't seen that anytime recently. Examiners are also 'encouraged' to pick up their oldest case first (In fact the MPEP says that it is required, I believe) when starting a new application. To help encourage them, each examiner is tracked as to which application on their docket is the oldest one yet to be taken up for examination, and how long it has been their oldest case. It is the SPE's job to monitor this and to make sure that the examiners are not putting off working on an old application just because it might be a tough one.

Of course, just to be a contrarian, I'd point out that cherry-picking cases would actually decrease pendency, because if examiners all worked on the easiest cases first, they'd presumably get disposed of quicker, and so overall pendency would be reduced more so than if we worked on all of the tougher and presumably more time consuming applications first.

The PTO should open satellite offices that are geographically distributed across the country.

This proposal is bandied about every so often. Can't say that I see any down side to this. With everything going to electronic record-keeping these days, it seems like a practical plan, and would certainly expand the pool of candidates for examiner positions. There would be challenges, but perhaps not insurmountable ones.

Limit continuations and claims. This would allow examiners to perform examination more quickly (fewer claims) and to process more new applications (fewer RCEs to examine).

Well, this one has been hashed over ad nauseam, and no doubt will be again when the final decision on the new rules is finally handed down. I believe everyone's positions have pretty much been made clear. No need to go into it again right now.

So, those are the proposals. Personally, I think that if I had to pick a single issue to address in order to decrease pendency, I'd concentrate on examiner retention (although not necessarily through the changes to the law school tuition reimbursement program that the author proposed). I'm not sure what specific actions I'd propose, other than I believe that it would need to address examiners satisfaction with the job they do (and that is a completely separate issue from salary). If you want to retain examiners, they need to be happy doing what they are doing. When they are not, they leave.

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