IG Report: Examiner Time and Attendance Abuses

by Dennis Crouch

The Department of Commerce Inspector General has released an important investigative report concluding that a substantial number of patent examiners are involved in “time and attendance abuse” — working unsubstantiated hours.  The unsubstantiated hours peak just [before] after production quota.  In a PR response directed both internally and externally, the USPTO emphasized that the report showed only “approximately 2% of the total hours claimed by the patent examiners” were not explained by the computer-records used by the IG and that “there may be many reasons for the lack of a digital footprint” for that amount of time.  The PTO also reports that their new mechanisms for time recording have reduced the opportunity for mistakes.

• IG Report [OIG Examiner Hours Report]
• PTO Media Statement [Link]

This new investigative report is a follow-up to prior IG investigations regarding telework abuses. [IG Reports][Patently-O].

With 10,000 examiners, the 2% over-charge rapidly adds-up to $10 millions+ per year.  While most examiners had at least some unsupported time, the vast majority of the potential abuses were concentrated to a much smaller group of examiners.  About half of the unsupported hours were claimed by a limited group of ~5% of examiners.

In the background of all of this is that examiners must meet production goals as well as hours goals that are both standardized.  Examiners that are outside of the norm (either more or less efficient) will face an increased incentive to fudge the system.

An important question that is not addressed directly by either the Inspector General report or the USPTO statement is whether the examiners identified as potential egregious violators will be further investigated and sanctioned where appropriate.  Footnote 2 of the OIG report answers the question from its position:

The OIG has not conducted a criminal investigation (or referred this matter to the U.S. Department of Justice for further investigation) and is not recommending that USPTO pursue administrative action against any of the individual examiners analyzed in this review, due to possible implications of the Computer Matching and Privacy Protection Act of 1988 (CMPPA), Pub. L. No. 100-503, 102 Stat. 2507. In general, the CMPPA imposes certain restrictions on federal agencies’ comparison of multiple datasets to identify misconduct and pursue either criminal or administrative action. Out of an abundance of caution, the OIG designed this analysis to avoid implicating the CMPPA.

I expect that the IG is using this approach as an excuse to attack the PTO without directly attacking any particular examiners. For the IG, the point here is that the PTO needs to improve its systems and structures.

More to come on this.