just_n_examiner (just_n_examiner) wrote,

New Examiner Performance Appraisal Plans

The Task Force put together by management and POPA to study ways to improve the examiners' Performance Appraisal Plans (PAPs) has finished its work. The proposed plans are being introduced to the corps in a series of briefings.

The PAP defines the duties for which examiners are responsible, and the metrics by which they are graded. The current PAP has not been significantly changed in close to 25 years, other than the addition of the Customer Service element in 2001.

POPA presents its views on the proposed PAP in their latest newsletter. The new PAPs must be approved by a vote of POPA members. Voting closes on Friday afternoon and results are expected over the weekend.

What kind of changes are we talking about? They're pretty extensive, and there are lots of details. Here's a quick look at what has changed at the highest level.


The PAP Elements

Examiners are graded on a number of elements, each weighted differently, presumably based upon the importance that the Office places on each of the elements.

Under the current PAP, there are six elements under which primary examiners are graded.


10% - Patent Examining Functions
The objective of this element is to formulate appropriate action or recommendation therefor with respect to the grant or denial of a patent to an applicant.

Under this element, the examiner is expected to:
(1) check applications for compliance with formal requirements and technological accuracy;
(2) treat disclosure statements and claims properly;
(3) analyze disclosure and claims for compliance with 35 USC 112;
(4) plan a field of search;
(5) conduct the search;
(6) formulate rejections under 35 USC 102 and 103 with supporting rationale, or determining how the claims distinguish over the prior art;
(7) determine whether an amendment introduces new matter;
(8) determine whether a restriction is proper;
(9) determine if the claimed invention is operable/useful as disclosed;
(10) evaluate/apply case law as necessary;
(11) evaluate sufficiency of affidavits/declarations;
(12) determine whether appropriate line of patentable distinction is maintained between applications and/or patents;
(13) evaluate sufficiency of reissue oath/declaration; and
(14) evaluating appropriateness of grounds for reexamination.

10% - Action Taking
The objective of this element is to formulate clear and complete Office actions with respect to the grant or denial of a patent to an applicant.

Under this element, the examiner is expected to:
(1) include all reasonable rejections and/or objections;
(2) make no unreasonable rejections;
(3) make no unreasonable formal requirement;
(4) take no arbitrary or capricious action;
(5) make the record as a whole, reasonably clear and complete; and
(6) properly treat all matters of substance in applicant's response.

The distinction between these first two elements seems to be pretty subtle in some areas. For instance, formulating rejections under 102 & 103 with supporting rationale is assessed under Patent Examining Functions, while including all reasonable rejections and making no unreasonable rejections is assessed under Action Taking.

20% - Patentability Determination
The objective of this element is to determine that all allowed claims in an allowed application are patentable.

Under this element, for any allowed application, the examiner is expected to:
(1) determine that all claims are patentable under 35 USC 102 and 103 over the prior art of record;
(2) determine that all claims are patentable under 35 USC 102 and 103 over all prior art which is not of record but should have been;
(3) determine that all claims are patentable over all other pertinent sections of the statute (101, 112, 251, etc.); and
(4) determine that all claims are patentable over all non-statutory rejections (e.g., obviousness type double patenting).

Since only primary examiners can sign allowances, all other examiners are not graded on Patentability Determination. The weights of the remaining elements are adjusted accordingly.

40% - Production
This element is self evident. The objective is to achieve the assigned production expectancy.

10% - Workflow Management
The objective of this element is to expedite the flow of patent applications through the examination process in accordance with Office policy and provide appropriate service to the public and peers.

Under this element, the examiner is expected to:
(1) handle all applications and proceedings awaiting action in accordance with the time period or special handling instructions prescribed by current Office policy;
(2) forward all work for processing and/or handling promptly or in accordance with prescribed time periods;
(3) conduct all interviews and/or other contacts with the public as scheduled with adequate preparation, and in a courteous manner. Further, no interview and/or other is arbitrarily or capriciously refused by the examiner; and
(4) provide search consultation and other assistance to the public and peers.

So Workflow is based on the speed with which an examiner moves their applications, while Production is a measure of the number of applications processed. These elements really seem to be two sides of the same coin, though, just measured differently. Production does take into account 'other time', so is a measure of the number of counts per hour spent examining. Workflow is a measure of an examiner's ability to meet specific deadlines for taking action on certain cases, such as amendments, which must be acted on within 2 months of the time the case is placed on the examiner's amended docket. It more or less encourages examiners to act on cases to ensure that the Office achieves its statutory goals for responding to applicant's submissions. In both cases, though, the examiner's ability to move applications quickly is being measured.

10% - Customer Service
The objective of this element is to provide appropriate service to our external customers.

Under this element, the examiner is expected to:
(1) return phone calls from external customers, generally in one business day;
(2) review electronic messages generally at least one every work day, and respond by any appropriate means;
(3) provide external customers with normal schedule information via voice mail if working less than a Monday through Friday schedule;
(4) provide external customers with voice mail notice of extended absences of more than two business days; and
(5) direct external customers to appropriate office or person, in accordance with a list provided by Management.

This element was added as part of the millennium agreement signed in July of 2001.


So, how does the new PAP affect these elements? Quite a bit.

The duties haven't changed significantly, but the weights of the various elements have changed.

35% - Quality
This is a consolidation of the former Patent Examining Functions, Action Taking and Patentability Determination elements. The weight given has gone from 40% for those combined elements down to 35%.

35% - Production
Once again, self evident. Nice to see a decrease in the weight of this element.

20% - Docket Management
The re-named Workflow Management. This element doubles in weight, which obviously better aligns the examiners' PAP with the agency's statutory goals.

10% - Stakeholder Interaction
I was hoping that that particular buzzword had died (along with Total Quality Management), but apparently not. I'm not sure what was wrong with the Customer Service title, but the things on which examiners are graded under this element haven't significantly changed.


So, at the highest level, the emphasis of the PAP has moved more to workflow, less to production and quality. If you accept that production and workflow are really closely related, though, the end result is that examiners will be graded slightly more heavily on their ability to quickly process applications and generate Office actions (from 50% under the current PAP to 55% under the new one), and slightly less on the quality of those actions (from 40% to 35%).

The details of how examiners are graded for each of their elements are fairly extensive (too extensive to discuss in a single post), and in some cases have been changed quite a bit in the new proposed PAP. The changes, as I understand them, seem to be largely beneficial to the examining corps. I will be very surprised if this new PAP is not overwhelmingly approved by POPA members. If approved, the bulk of the new PAP elements will be effective retroactive to the beginning of the fiscal year.
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