USPTO Fees: Look for Increases

Gary Locke (Secretary of Commerce) has again indicated the Obama Administration’s support for the pending patent reform bill S. 515.  [Letter].  The letter also suggests that the PTO should be given authority to raise its fees, including “a limited interim fee adjustment.” 

For many years, the PTO has been funded entirely by user fees.  I hope that the same can continue to avoid such direct Congressional control over PTO spending.  But the PTO clearly needs money, and the alternative of cutting PTO services is likewise highly unappealing.  The third alternative: raise fees.

In the past, I have reported that patent applicant behavior is relatively inelastic to PTO fee changes. Although a 15% increase in fees would reduce the number of applications, the total revenue would increase. 

If the PTO is going to increase fees – how should it structure that increase? Notably, should more the burden be placed on (1) standard application fees; (2) issue and maintentance fees; or (3) luxury fees for excess claiming (20+) extensions of time?  All Universities qualify for the small-entity fee reduction. Does that still make sense?

Notes: The letter from Locke also promotes the idea of worksharing between patent offices when the same invention is being examined in multiple locations.

Comments

[LeMieux]

The standard application fee should be raised considerably so that the process is accorded the gravitas it deserves by applicants. Then the RCE fees should also be raised to discourage clients from arbitrarily protracting prosecution.

Of course all of this rests on the presumption that the Examining Corps will raise their level of play accordingly.

We can dream can't we?

[Dissenter]

"...the Obama administration's support...for S 515"

Judging from the effect of the Obama administration's support for healthcare reform, I predict S 515 will end up where it belongs - dead in the water.

Looks like the administration is a trainwreck looking for a place to happen. Let's hope it doesn't happen at the PTO.

[anon]

I say triple the fees. No, make them four times higher. For example, raise the oral hearing fee to $5000.00. Why not? Raise the appeal fee to $10,000.00. It doesn't matter that many rates have been frozen or effectively reduced. Do it PTO.

[Just an ordinary inventor(TM) ---]

Yo anon,

Any increase to large entity fees should be (inversely) proportional to decreases to small entity fees, OK buy U?

[Noam Sayin']

Wonder if this is one of those "shovel ready" ideas.

[Mark Nowotarski]

“I say triple the fees.”

This was the approach in Europe in the 1800’s. They found that the number of patents decreased exponentially for every year that an applicant had to pay an annuity. The argument was that this was more effective at weeding out unworthy patents than the US system of examination. http://bit.ly/19n0h7 (This should show up as mechanically translated English from the original French)

[No One in Particular]

I thought Government Agencies were only allowed to charge fees to recover their costs.

When I pay a patent maintenance fee I am not paying the Patent Office to do something. I am paying them to *not* do something - take away my patent.

It's extortion.

[Malcolm Mooney]

Everyone should pay the same fees. Why in the hurl should the PTO of all places have a progressive fee system? Do I get to pay a reduced parking fee or reduced speeding ticket because I earn less? Nope.

Get rid of the distinction. Pain in the axx and not worth it.

[Sport of kings?]

"Do I get to pay a reduced parking fee or reduced speeding ticket because I earn less? Nope."

Whoa whoa whoa there, Pick-a-few-convenient-examples-and-make-a-blanket-statement Mcgee. The government gives all sorts of breaks to people who "earn less." Student loan interest write-offs, first home buyer credits, senior citizen admission rates at museums, lower income tax rates, etc. etc. are all available only if you are in a class of people that "earn less." We extend these lower prices on any services/benefits that cost money but to which we want everyone to have (some) access to, regardless of income. The better question (which you NEVER ask) is are patents one of these services/benefits?

[6]

Question for any lawyers involved in the type of law where you are suing the gov. for a regulatory taking.

In light of the newly exposed position of the office taking .25 counts away from all applications which are currently "rejected" when the transition to the new system occurs, could an employee sue for a regulatory taking? Could there be a class action suit? If so, anyone want to take the case on contingency basis?

[ianl (bik2t)]

6,
kneejerk no. you don't have a vested right in your system of compensation (unless maybe through some clause in popa's contract?)

[Unless you lose tenure at a government school]

"In light of the newly exposed position of the office taking .25 counts away from all applications which are currently "rejected" when the transition to the new system occurs, could an employee sue for a regulatory taking? Could there be a class action suit? If so, anyone want to take the case on contingency basis?"

LOL. Well, 6, you certainly have an attitude of entitlement. Unfortunately, you don't have an "entitlement" under any life/liberty/property due process caselaw.

[6]

"http://www.thedailyshow.com/watch/tue-march-3-2009/moment-of-zen---rush-limbaugh-isn-t-ugly"

It would be selfish for me to hold this back.

"LOL. Well, 6, you certainly have an attitude of entitlement."

Entitlement to be "paid" for my work? Absolutely. I didn't do it with an expectation of it being done for free (as with a modern artist lol). And I'm pretty sure that there is enough paperwork signed that I certainly should have a "vested right" in my system of compensation.

Anyone who comes up with a believable and likely successful case on this subject will be richly rewarded. Richly.

examiner6k@yahoo.com

According to this:

http://www.businessdictionary.com/definition/vested-right.html

it seems likely to me that I have one.

[Humorless Democrat]

Raise maintenance fees. They're they to compensate society for the granting the inventors exclusivity in the form of the patent; if the invention is truly commercially valuable, then the higher maintenance fees will be well worth it. Raising fees earlier in the process could result in some worthwhile inventions of smaller inventive entities not receiving patent protection (and thus never being developed) - although significantly raising fees for claims over 20 might not be a bad idea, and wouldn't adversely affect small inventors.

[whoot]

Sounds like a good way to get yourself fired, 6. I don't really see how you would get anywhere with it anyway, since it came from POPA in the first place. Besides, if you don't like it, join POPA and vote it down, you cheapskate.

[6]

"Besides, if you don't like it, join POPA and vote it down, you cheapskate."

Actually word on the streets is that is where it is headed. And I am a member, have been for awhile.

[M. Slonecker]

I say raise the fees to astronomical levels. After all, this has been the end goal ever since the USPTO switched over to a PAYG and maintenance fee system.

Likewise raise fees for taking the bar exam, and institute mandatory, draconian annual dues for everyone practicing before the USPTO, including those on the trademark side of the aisle. In fact, make them take an expensive bar exam as well. Why settle for just patents when you can have it all?

Why worry about "quid pro quo" when you can easily implement "quid and more quid and even more quid"?

Our system of patent laws was established to encourage disclosure. That seems so passe in the 21st century. Who really cares if inventors of modest means are priced out of the "legal market"? It is not as if they have something really useful to contribute anyway that fosters progress in the useful arts.

[anon]

This should be dictated and not voted on. The examiners would never agree to anything that actually improves the system.

[Casual Observer]

The last thing these guys need is more money without a focus on delivering services to its users. What they need to do is get rid of the entrenched bureaucracy of IT contractors and spend the savings to put 21st century technology in the hands of the examiners.

Two weeks ago the USPTO CIO, John Owens, stood up in front of a group of industry people at an event focused on PTO Data Dissemination as part of the Data.Gov initiative. He was looking for help. He basically said that his computers are ancient, all the examiners and the public share the same network connections, and he doesn't have any money to make improvements. This is despite huge contracts for IT services that don't appear to be doing much to bring state of the art technology to bear on their huge backlog of applications or to improve the tools available to the examiners. He told the assembled that most of us had faster routers in our homes than he has to run the USPTO infrastructure.

(See: http://searchthewayyouthink.blogspot.com/2009/09/data-dissemination-industry-day-at-pto.html)

Without some kind of a plan to fix the infrastructure, nothing will get done by raising fees other than cutting out small inventors. New fees will just feed a giant slush fund without improvements that will improve patent quality or make the examiners want to stick around.

[Erez Gur]

Increasing maintenance fees would probably not increase USPTO income: the income gained from patentees who pay would be lost from patentees who let a patent expire.

Increasing filing fees will increase income, but will hurt the little guy.

A solution would to give better service for more money.

For example, if the USPTO were to allow an Applicant to choose search/examination at the European, UK, Australia or Korean offices with a guaranteed first substantive office action a year from filing, where the USPTO automatically accepts the foreign office's decision to allow, the USPTO could charge 4 x filing, search and examination fees.

[6]

"This should be dictated and not voted on. The examiners would never agree to anything that actually improves the system."

I would not have actively opposed the system sans this provision which appears to have been released more recently than the original proposal was. And a lot of other examiners wouldn't have either.

[6]

"He told the assembled that most of us had faster routers in our homes than he has to run the USPTO infrastructure. "

To be fair, router technology advances rather rapidly. And 1999 routers work plenty well to run a simple network. I speak from experience. Just because his network admin staff may blow balls is not the router's fault.

"Who really cares if inventors of modest means are priced out of the "legal market"? '

Certainly not patent lawlyers.

Besides that though Slone, you seem to act like ind. inventors cannot get nearly the exact same deal as they did in 1900 and can't do it themselves. They can.

If you were against all the legal nonsense that took place between then and now then I'd be more apt to believe you had their best interests in mind. But you don't appear to be. You appear to merely be against small fees that don't compare what so ever to the amount being charged by counsel whom you seem to feel are mandatory.

[Billy Dee Williams]

Initial fees need to be increased (specifically the search and examination fees) and the increase needs to be allotted directly and only to the first action. Also, excess claim fees need to be allotted to examination.

The new system is smoke and mirrors. The counts decrease with number of RCEs, which the attorneys like because it looks like examiners will not want to prolong prosecution. The hours/BD increase, which examiners like because it makes it look like they're getting more time to work a case. But when you crunch the numbers, the average examiner is getting slightly less than an hour per BD extra (slightly less than 1/2 hour extra per count) on the average round of examination. The PTO said their fall back position is to simply add 1 hour/BD across the board. Check it out using the numbers in their presentation and you will see that that is a better deal for the majority of examiners.

This is a shame because the new plan has some good aspects. The re-allotment of counts within a round of examination is good (although I would argue that 1.25 for the non-final, 0.5 for the final, and 0.25 for the disposal is more appropriate). That change in and of itself does not change the number of counts given for a round of examination and would not likely be opposed by examiners. It would be extremely beneficial to solving the new examiner attrition problem.

It doesn't make sense to take away counts from RCE rounds unless you've added enough to the first round to get the case thoroughly searched and examined. The root of the problem is that the art unit expectancies are woefully out of date. Simply adding 2 hours to the first action, at least in complex technical areas, isn't going to make up for the difference.

[kd]

What about adding a registration patent system option?

The applications would have to be "formal" (i.e. not a provisional), but they wouldn't be examined for substance. Something like a copyright. They would also be published, thus providing public access. Fees could be relatively low because not much would have to be done (e.g. publication and a review just to be sure it met technical requirements of a patent such as having claims and the correct margins). This would help the small guy. If proof of actual infringement were found, there could be a fast track for examination and the potential infringer could be notified so they could submit prior art/documents.

Lots of advantages here because some of the small guys invent stuff that will never be infringed, so there is a lower up-front cost for them. Big guys would like it because their competitor's information gets published sooner (not the 18 months for current publications). The patent office gets money fast without having to do much.

I know more would have to be done to flesh this idea out, but it is just a thought.

[kd]

Has fee diversion been ended? If not, wouldn't that be a great place to get money without requiring any type of fee increase?

[6]

"http://www.marketwatch.com/video/asset/yho/%7BF62C4D05-8593-4A60-9D27-A79CFD95BA18%7D?siteid=yhoo"

A great watch, stick around for the interview with boone for an even better watch.

[anon]

kd, see:

http://en.wikipedia.org/wiki/United_States_Statutory_Invention_Registration

[QQ]

"In light of the newly exposed position of the office taking .25 counts away from all applications which are currently "rejected" when the transition to the new system occurs, could an employee sue for a regulatory taking? Could there be a class action suit? If so, anyone want to take the case on contingency basis?"

if you get fired, will you sue for a regulatory taking too?

[inviting body punches]

Noam Sayin', that was hilarious!

I'm really sick of how this country's elected representatives have forsaken their responsibility to the citizenry in favor of their "duty" to negotiate with public sector unions.

I believe it was Pres. Kennedy who signed an executive order, or something like it, that granted to the public sector the right to bargain collectively.

So, we end up in this ridiculous circle, that has costs spiralling upward and productivity spiralling downward. Increasing costs for decreasing service.

How in the heck could ANYBODY examine a patent sufficiently to prepare a cogent FOAM in the amount of time currently allotted for this purpose?

Increased costs are not the answer. Getting rid of the current collective bargaining model is the answer. I'm not saying that there should not be any collective bargaining, but it has to change somehow.

[6]

"if you get fired, will you sue for a regulatory taking too?"

I think that would probably be better based upon discrimination based upon my nationality. American.

"productivity spiralling downward."

I'm not sure where you got that from. Productivity hasn't moved since the 70's. And adding one hour at the expense of hours on RCE's is hardly "productivity spiralling downward".

You must have your rose colored glasses on.

"Increased costs are not the answer. Getting rid of the current collective bargaining model is the answer."

So wait a minute, you want to get rid of the major player fighting for more time and hope that mgmt just gives out more time freely? So far as I follow this logic it seems to be arse backwards.

It's like saying, you know bob, I'm tired of the current level of production from that lemon making machine. I think we should keep the machine, and get rid of all the parts of the machine that operate towards making lemons and not replace them with other parts. Then we can just sit back and watch the production SOAR!

[me]

"Gary Locke (Secretary of Commerce) has again indicated the Obama Administration’s support for the pending patent reform bill S. 515."

The problem is the bill will not reform the system. All it will do is legalize theft of small entity creations by large corporate infringers.

Patent reform is a fraud on America...
Please see http://truereform.piausa.org/ for a different/opposing view on patent reform.

[6]

No no no, my bad, bad analogy.

It's like saying, you know bob that lemonade making machine currently doesn't do a very good job making lemonade because it doesn't spend enough time brewing it. What I think we should do is take out the protective feature installed by the manufacturer to make sure that brewing time is at least a certain amount and sit back and watch the amount of lemonade made SOAR!

[broje]

Examiners need more time to examine applications. The PTO needs more maintenance fees, since those are the primary source of funds that actually stay at the PTO.

Decreasing counts for RCEs will encourage Examiners to spend that extra time doing a better job examining dependent claims and reviewing the specification, thus identifying allowable subject matter more often. The result will be more allowances and continuations, as opposed to rejections and RCEs. Its a win win.

Why would the PTO give Exmainers more time, and thus more money, to just more firmly reject applications, resulting in no increased maintenance fees?

[6]

"Decreasing counts for RCEs will encourage Examiners to spend that extra time doing a better job examining dependent claims and reviewing the specification, thus identifying allowable subject matter more often. "

You don't get anything you don't pay for Broje. You should know this.

[Malcolm Mooney]

Get rid of the small/large entity distinction.

[broje]

"You don't get anything you don't pay for Broje. You should know this."

The extra time is being given. That time will be paid for by the increased maintenance fees.

[kd]

SIR is not what I was talking about.

I was talking about an application that is published without being examined, but that you could pull back into the patent system if someone infringes your idea. It is my understanding that an SIR is just a dedication to the public.

There would have to be some type of damages that could accrue (similar to those of provisional rights, but more stringent) after the application was published/registered.

[Adam Smith]

6 said (with apparent pride): "Productivity hasn't moved since the 70's."

Huh. While productivity has doubled in the rest of the economy. What's the PTO's excuse?

[Patent_Medicine]

6, there has been no "taking". You haven't lost anything. The count system is being changed to change your behavior. It's just like tax incentives -- there's a mortgage interest deduction to encourage people to buy homes. If the government wanted to discourage development and building of new homes, they'd get rid of that deduction. This is no different.

[Ned Heller]

6 "In light of the newly exposed position of the office taking .25 counts away from all applications which are currently "rejected" when the transition to the new system occurs, could an employee sue for a regulatory taking?"

6 Does seem unfair. Whoever designed this flaw into the system should fix it.

[Jules]

"Whoever designed this flaw into the system should fix it."

It is already accounted for with a "Safety Net" and also in the recurring reevaluation and adjustment scheme built into the proposals.

[Ned Heller]

Personally, I would reduce the application fee to a nominal fee, eliminate maintenance fees, charge per page printed and then put all the rest on a per claim fee. This way, the applicant could go cheap or expensive at his or her choice and be fairly charged for the costs she actually imposes on the government.

As to small entities, I support the difference in fees. Leave it as is.

[yapex]

"...choose search/examination at the European, UK, Australia or Korean offices with a guaranteed first substantive office action..."

LOL. Many of the Korean applications I worked with are granted patents by KIPO and end up getting rejected by the USPTO. Majority of EPO office actions I've seen barely cover the independent claims, and hardly touch on the dependent ones. If we're allowed that kind of quality, our lives would have been much better at the USPTO.

[inviting body punches]

I think that everybody here agrees that examiners need more time to examine, especially for a FOAM.

What is the barrier to giving them more time? There is insufficient money to pay them, and still maintain current levels of pendency.

Why is there insufficient money to pay them? Because PTO labor costs for both current and former examiners are determined according to a scale that cannot effectively be altered, except that the rates of compensation always rise.

So, reducing costs is not an option. The only thing left is vastly increasing pendency (not a good option as it reduces the effectiveness of patenting), or increasing the budget.

This is what we have thanks to the current employment contract. Examiners are overpaid, on an hourly basis. Pension and healthcare and other legacy costs are ridiculous. We are paying each individual examiner WAY too much for the service they deliver.

I'm not saying examiners don't work hard and well--like anything else, there will be some who are good and some who are not, following some sort of distribution.

But when there is inflexibility in controlling labor costs, you are stuck with either raising the budget or suffering a diminution in service, such as poorer quality or increased pendency.

Even moving the patent office to the middle of Wyoming wouldn't help much, as the examiners would still have their employee classifications. Similarly, having remote examiners also wouldn't help much.

As long as we have the current contract in place, and the current mechanism of negotiating the contract, we are stuck with either increased costs or decreased service.

And the comment about productivity--6, are you telling us that there have been no tools implemented at the PTO since the 1970's that would otherwise enable increased productivity?

[rockey]

inviting body punches, the big secret known by the PTO is that if you give examiners more time, the bulk of them will only adjust their production accordingly without any increase in quality. There has to be another measure of, or incentive for compactness.

So many important things regarding searching have been ignored over there for so long, I doubt any of the measures being discussed will have any positive effect.

[A plurality of thresholding units]

Examiners are hired primarily for their technical expertise. Therefore, they have to be paid on a scale that is competitive with engineers and scientists living in the DC/NOVA area. Long-term examiners with great familiarity with the law (some of whom have law degrees, for that matter) have to be paid at least somewhat competitively with patent attorneys (modulo attorneys' longer hours and higher stress levels). If you shortchange them, they will leave, union or no union.

[Erez Gur]

Yapex,

My experience is different than yours. I see the EPO and KIPO allowing claims of scope that is commensurate with the Inventors' contribution and the state of the art.

My experience is that the EPO don't cover the dependents because the cited art is so close to the invention that I can figure out what is patentable and what not by myself.

That the USPTO rejects KIPO granted claims may or may not mean something. Many posters here think that has more to do with USPTO mischaracterizing prior art or misinterpreting claim language.

But even if the USPTO is "better" than the KIPO, is it worth the added expense and time? How often do you hear that the claims allowed by the USPTO hold up in court?

[Just an ordinary inventor(TM)]

Malcome Mooony,

Re:
"Get rid of the small/large entity distinction."

R U sure U don't want to enlarge the diff?

[6]

""6 said (with apparent pride): "

With pride? Are you insane?

"What's the PTO's excuse?"

People keep demanding this whole "examine my application" nonsense. I know, I know, it's silly. It really is. But that's how it is.

Add to that the fact that, *gasp* as time goes on, examining applications gets harder (more time consuming at least) and you have a real pickle! "OMFGWTFBBQ?!?!?!?! Examining applications gets harder as time goes on?!?!?!?!!!!!!11111111" I know you just said to yourself. But yes, it's true :(

"The extra time is being given. "

Ahh your post didn't make that clear.

"That time will be paid for by the increased maintenance fees. "

So in three years work will be paid for that is done this year?

I'll say this for you broje, as an administrator you'd work wonders for an organization, after it failed.

"It is already accounted for with a "Safety Net" and also in the recurring reevaluation and adjustment scheme built into the proposals."

You don't know what you're talking about. If you did, you wouldn't have said that. And that is what worries me about simply speaking up about it and bringing it to everyone's attention. They all think they have a good bead on things now that the original plan was set forth. They aren't going to mind the little stipulations stuck in after the initial document was sent out. Even if they read "You no longer get credit that you were promised for work you did, credit which you were promised". They wouldn't care even if it read "You will recieve no counts for cases currently "rejected" on your docket. Because magically the safety net makes up for it.

Oh wait, no it doesn't. Not at all.

You simply never get .25 counts that you were promised when you sent out those non/finals. For about 30+ cases.

You're in effect contributing about 6000$ (depending on your GS lvl etc.) to the new plan.

Congrats.

Just remember, do it with a smile on your face.

And when they come and make the next changes in the system so that counts get 0 credit for abandonment but .75 for final, and you don't get any credit for the cases you sent out under this new system, be sure to donate another 6000$ to them again. Be sure to smile then too!

YAY let's work for free!!! :):):)

"You haven't lost anything."

You don't get this. Let's say, for instance, your client wants you to do some responses to a bunch of nonf's and final rejections as they come in over the course of the next year. You say ok, I'll do it for 5000$ flat fee for each if they are a rejection. They say ok, and they'll pay you 6 months after every final and immediately after every nonfinal. You do a final response and send it in. 3 months later you recieve a letter from the client saying he will instead pay you 3750$ flat fee for all responses you make including the first one you already did but he will make it up to you by paying 6250 for each nonfinal. You say OK SOUNDS GREAT TO ME!!!!!! Oh wait, what's that? You don't say that? You say, well, I already did a final at 5000$ that we agreed upon and even if I agree to the new pay scale going forward I insist upon the 5000$ agreed upon already being paid?

Oh, that's right. You do say that. And that's what I say as well. "

"Examiners are overpaid, on an hourly basis. Pension and healthcare and other legacy costs are ridiculous. We are paying each individual examiner WAY too much for the service they deliver."

Imma just lol@u now. K? If you paid any less you wouldn't even have anyone working in my art. Nobody would even bother to apply, and they certainly wouldn't accept the position. Now, if you'd like to pay less and let me live somewhere else then we may be able to reach an agreement.

"6, are you telling us that there have been no tools implemented at the PTO since the 1970's that would otherwise enable increased productivity"

Did I say that?

" you are stuck with either raising the budget or suffering a diminution in service, such as poorer quality or increased pendency."

You're going to be stuck with that either way bucko. Sorry. Your only option is to relocate the PTO and then lower your costs. Even if you get the ability to pay whatever you please with no bargaining.

Rockey seems to be the only one here telling it how it is.

I don't have any more time to talk to you guys today, got stuff to do. Cya tomorrow or really late tonight.

[inviting body punches]

Plurality--

First of all, not all engineers/scientists with the same "qualifications" are paid equally, even in a given geographical area. There are better-paying, and worse-paying, jobs. To say that the PTO examiner scale has to be "competitive" is misleading.

If the PTO were to pay less, it may attract candidates with inferior credentials (not necessarily inferior candidates), or those candidates looking for a different lifestyle, or those who have a desire for public service, or those who wish the opportunity to transfer to other areas within public service. Just because it paid less doesn't mean that the halls would empty of examiners, especially in today's labor market.

Yes, more experienced/qualified examiners should probably be paid more than new/less qualified examiners, but the entire scale should be moved downward. Basically, no examiner at any level should be paid what any private sector patent attorney or engineer gets.

Why? Because private sector workers work FAR GREATER HOURS than their public sector counterparts, private sector workers assume job loss risks associated with non-performance or inferior performance unlike their public sector counterparts, private sector workers assume the risk that their entire enterprise or their employer's enterprise could fail and land them unemployed, unlike their public sector counterparts, and perhaps most of all, private sector attorneys and engineers assume professional liability to their clients, an assumption that entails risk, cost, or both, unlike their public sector counterparts.

You use the word "shortchange", which is disparaging-cutting their pay wouldn't "shortchange" them at all, it would more accurately price their services according to market levels. Examiners in the aggregate would not leave the PTO--they have it relatively easy, make good money, have almost absolute job security and a guaranteed pension, are able to see retirement as a realistic goal, etc..

Examiner's total compensation is way too high, as are the overall labor costs endured by the PTO when legacy costs are taken into account. Equal pay for equal work. Less pay for less work.

As rockey said, if you decrease their pay, they will not leave, but instead will work less. I have worked in the public sector, I know how the game is played. My solution? Fire them for cause.

There are plenty of recent grads out there looking for work right now, and the supply will continue unabated for at least several years.

I'm forced to conclude that current examiners have little knowledge or understanding of patent law and regulation, and have knowledge relating only to the superficial guidelines published for their benefit as the MPEP. Any newly-minted examiner would therefore not be far behind in this respect.

[inviting body punches]

I have never really understood how examiners could be any less than registered agents or attorneys.

In fact, they should properly be a class of super-agents, or super-attorneys, and be paid accordingly.

Any good patent attorney or agent could be paid the same in the patent office as in the private sector (reasonably), and be INFINITELY more productive than any current patent examiner, unless the bureaucratic machinery got in the way. We could cut the number of examiners in half, pay each one twice as much, and get some ACTUAL expertise on staff--not just the mundane technical expertise, but the sophisticated and nuanced legal expertise that is required to conduct a worthwhile examination.

[inviting body punches]

Nobody would bother to apply or accept examining positions, and your art unit would empty out, if wages were decreased? Bull! Absolutely NO worthwhile evidence to support such an assertion.

And even if it were true, those who left would be back as soon as their UI ran out and they were left jobless.

Relocating the PTO wouldn't automatically mean that you could lower all PTO wages--you know that.

And as far as living in the DC area goes, there are PLENTY of people living there who make HALF what examiners make, and still manage to eke out a living. Examiners as a class are not the kind of people who can pick and choose what they are going to do and where they are going to do it.

Some examiner is going to pick up and go straight to any place that pays top-flight salaries to technical personnel? Yeah, right.

A big problem is that supervisory examiners are also in the union. There is effectively no union/management split at the "productive" levels of the organization. You are all brothers, you are all in the same boat. All carrots and no sticks.

[Jules]

6: "Because magically the safety net makes up for it.

Oh wait, no it doesn't. Not at all."

How does it not? The Memorandum of Understanding states:

"9. Safety Net

A. The Agency shall maintain PALM functionality so that an examiner's performance may be calculated under the previous count system.
B. Where performance issues arise, including performance actions, promotions and WIGIs, production shall be calculated using both the old and new system. The best result for the employee will be used to determine the production goal achievement element in the PAP.
C. The safety net will be maintained for the duration of this Agreement and will also apply to performance issues, such as those listed in B above, that relate to an examiner’s performance during the duration of this Agreement.
D. The safety net shall be available for performance actions, promotion eligibility, and WIGIs, but not for awards.
E. Situations not specifically addressed above that are relevant to the impacts of the new count system will be jointly addressed with the goal being to reach a reasonable decision in an expedient manner.
"

Subsection B explicitly says that you will be rated on both the old and new production systems, and whichever result is better is the one that applies. There is an exception in Subsection D, which says the duality does not apply for the purposes of awards. Since you did not mention the exception, I fail to understand your beef with the safety net.

[Michael Valentine Smith]

"punches",

A lot of what you wrote above is misinformed, misguided or just warped. But it is all pretty much OPINION. And you know what they say about opinions... Not worth arguing about.

One fact you need correction on. SPEs are NOT part of POPA. When an examiner becomes a SPE (or other management position) they MUST resign from being a member of POPA (assuming that they already were a member).
SPEs are the ones that are stuck in the middle between examiners & upper management. They need to have a stick to use on the examiners (some literally) but have very little real power to enforce most anything. Most of the time the work a SPE has to go through to remove an examiner for quality is a near impossible hurdle to overcome. And even when that is achieved, POPA usually fights for the examiner & gets things overturned. About the only way to remove an examiner is production or them doing something REALLY stup1d (e.g., assaulting another examiner or surfing p0rn at work).

MVS

[Concerned for the Transition Inventors]

Re Jules' comments on the "safety net provisions" of the proposed new count system, note that this "safety net" is only good to juggle the examiner's production numbers around to make sure their performance rating isn't negatively impacted by the new system. This does NOT change the fact that Applicants are receiving less of an Examiner's time for transition applications than they would for cases filed either under the old system OR under the new system.

For example, an examiner who gets 16 hours per application (for a balanced disposal) under the old system will get 18 hours for that same application under the new system.

However, for a case that was acted on, i.e., had a first action on the merits (FAOM) sent out, under the old system, Applicant got 8 hours of that Examiner's time for the FAOM. If this case is then acted on again AFTER the new system is implemented, an Examiner only has 0.75 counts to work with. 0.75 times the 9 hours under the new system only amounts to 6.75 hours.

Thus, a case under the old system receives 16 hours of an Examiner's time, under the new system will receive 18 hours of the Examiner's time, but for that poor case that was unfortunate enough to be a "transition" case, the Applicant only will get 14.75 hours of the Examiner's time (8+6.75 hours). All the "safety nets" and juggling of the numbers after the fact (i.e., at the end of the fiscal year when it is determined whether or not the Examiner's numbers are better under the old system or under the new) don't change the fact that at the time the transition case is being acted on by the Examiner, the Applicants in those transition cases are receiving less of an Examiner's time than they did under the old system or than they would under the new system.

[Jules]

Concerned, I am glad you pointed that out.

I submit that examiners who micromanage their dockets to that extent are probably already doing a disservice to the public anyway ;)

[rockey]

It is comical that people are concerned about whether an examiner gets 16 or 18 hours. You could give an examiner 100 hours and get the same quality action as one prepared in 10 hours if there is no other incentive for better work present.

[Concerned for the Transition Inventors]

True, (re rockey's comment re quality) but the fact remains that you do have to build quality into the process in order to have a quality product (in this case, the resulting patent). If an application is allocated by the powers that be to receive X amount of the examiner's time, it very likely will not get more than that amount of time, and if we start off with no hope for a quality product, then all the in-process reviews (or whatever guage you want to use to determine whether a "quality" job is being done) in the world can't fix that.

Put differently, if you're complaining that the examiner is doing a bad job with 16 hours, what kind of job do you think they're going to be doing with 14.75?

Additionally, the whole premise of the proposal was to "do no harm". If an Applicant is unfortunate enough to have their case be a "transition" case, is receiving less of the Examiner's time than they would have under even the old system "doing no harm" to that Applicant?

[curious]

same percentage increase, across the board

[Examiner Number 9]

Inviting, I had a hard time picking the funniest comment but my vote goes to.

"We could cut the number of examiners in half, pay each one twice as much, and get some ACTUAL expertise on staff--not just the mundane technical expertise, but the sophisticated and nuanced legal expertise that is required to conduct a worthwhile examination."

But in all seriousness, my vote would go to moving the issuance fee to apply to all applications. Yes it might hurt the little guy but the assumption is that you will have to pay the fee anyway.

Tech specific fees for more complex arts might also be an interesting idea but it would have to be implemented in a way so that chance for abuse was minimal.

[6]

"How does it not? The Memorandum of Understanding states"

"The Memorandum of Understanding states"

"The Memorandum of Understanding"

What's next? The Ministry of Love? Am I playing an RPG where my memorandum is enchanted with an Enchantment of Understanding?

Apparently you are, because it has a magical effect on you. The enchantment makes you believe that, so long as there is a safety net to make your production a little better than it is currently, then it is ok for the office to not provide the due compensation for work done.

As it turns out, yours is a belief that is widely held (in conjunction with all of the other "good" provisions), and so is my own. One however involves "theft" and redistribution of the credit stolen being A OK. Care to take a guess which belief that is?

As far as I can see, we don't actually get an hour increase in time for the first year or two. All we get is some credit that is owed us within the next few months given to us over a 1-3 year period instead. This is an illusion of more time being given. Until 2 or so years from now when all the credit that was taken will have been paid back (by the "extra" hour), and we will then start to benefit an extra hour per count.

As the poster points out above, not only is the examiner's credit stolen, the applicant is shortchanged as well.

I'll be speaking on this subject more after I've had a chance to go over it with most or all of the people presenting.

Here is the calculation to tide you over.

You have 40 rejected cases on your docket. Instead of receiving full payment, you receive only .75 of that payment. At 12 hrs per count, you lose 4 hrs per each of 40 counts. 40x4, you lose 160 hrs of counts. In a year, you will probably do 100-120 counts. Thus, you make up 120 "free 1 hrs". So in a little under year and a half you'll probably break even. Fill in your own numbers to do the calculation for yourself.

The production change is is all one big bookkeeping trick that gives the office free work now in exchange for an ongoing benefit we will receive a long time from now. All while making Kappos out to be altruistic and generous. I have to hand it to him and the taskforce, it is pretty devious. There is no doubt about it. Even if they did it unknowingly.

What they should have done was just had those business students that came in awhile back work some business switcharoo magic and we could have had this done back when Peterlin was here.

[6]

inviting you can stop trolling btw, we're not biting anymore.

[xmr-not6]

While I shouldn't feed the troll, perhaps "punches" is simply uninformed. "punches" states that "Nobody would bother to apply or accept examining positions, and your art unit would empty out, if wages were decreased? Bull! Absolutely NO worthwhile evidence to support such an assertion"

Here is some evidence. When the economy was better, GAO did a report on the PTO. GAO found "From 2002 through 2006, one patent examiner left USPTO for nearly every two the agency hired. This represents a significant loss to the agency because 70 percent of those who left had been at the agency for less than 5 years" (see http://www.gao.gov/new.items/d071102.pdf).

If patent office pay, benefits, and security couldn't keep people at full pay, a reasonable person would assume that reducing that pay would, on balance, likely increase attrition. In 2008, the patent office Annual report indicates that over 1200 examiners were hired, but the personnel count at the agency only went up by about 600. Where are the other 600 people?

Further, if "punches" is so wonderful as to examine applications in his/her area of technology "infinitely" faster than examiners, we should only need to hire "punches" for a day to eliminate the backlog, since an "infinite" pace would allow "punches" to complete the backlog.

[anon]

"And as far as living in the DC area goes, there are PLENTY of people living there who make HALF what examiners make, and still manage to eke out a living."

Uhh . . . yeah . . . with the emphasis being on *eke* here.

Main Entry: 2eke
Function: transitive verb
Inflected Form(s): eked; ek·ing
Etymology: Middle English, from Old English īecan, ēcan; akin to Old High German ouhhōn to add, Latin augēre to increase, Greek auxein
Date: before 12th century
1 archaic : increase, lengthen
2 : *******to get with great difficulty******* —usually used with out

[Ego Trip]

"If the PTO were to pay less, it may attract candidates ... who have a desire for public service"

hahaha

"I have worked in the public sector"

Obviously not at the PTO.

"if you decrease their pay, they will not leave, but instead will work less. ... My solution? Fire them for cause."

What a sophisticated and nuanced position. I love it when you guys sit around here complaining about unknowledgeable examiners, then propose firing everybody and paying less.

[curious]

Casual Observer said "What they need to do is get rid of the entrenched bureaucracy of IT contractors and spend the savings to put 21st century technology in the hands of the examiners."

Makes sense to me

[yapex]

@Erez (12:58 PM): "My experience is different than yours."

Apparently so. I simply question the statement that foreign Patent Offices provide "_guaranteed_ first _substantive_ office actions".

Incidentally there was a posting from another examiner yesterday on the internal USPTO blog echoing my experience. He wrote: "However, in my own experience, about 8 to 9 times out of 10, I find better art than that provided in an IDS that provides foreign search results." I know of other examiners who share this view.

[A plurality of thresholding units]

I share that view as well, yapex. EPO deserves some credit for being more thorough than JPO and KIPO, though.

I suspect it's a language issue combined with the number of patents in the respective native-language database - KIPO has less than a million issued patents to search, while the US has 7.5 million (though admittedly, only about 3 million are generally useful). Also, most non-patent literature is published in English.

[Jules]

"you believe that, so long as there is a safety net to make your production a little better than it is currently, then it is ok"

You are apparently missing the point of my argument, because you have no idea what I believe.

The Safety Net keeps both old and new systems in place and the better one is used. Therefore, there is no loss in credit/time for "transition FOAMS" unless, possibly, the examiner is going for a bonus.

[6]

"The Safety Net keeps both old and new systems in place and the better one is used. "

I'm aware of what it does. I paid attention the first time, and I paid attention during the presentations that I've taken in.

There are two parts to the safety net.

If you're talking about the safety net part that merely reverts to the old system then the whole conversation is moot. If you use the old system of course no counts are lost. But then again, no progress is made towards making the transition. In other words, the whole thing never happened.

The second part of the safety net is them adjusting the modification of your hours up based upon your previous year's production. That part is not effected by the loss of counts. That is, your "boost" will remain the same. I'm saying this in a way such that it is a good/moot thing, but it is in fact a bad thing for those of you who haven't caught on yet.

Presuming however you wish to discuss the new system, the counts fly out the window.

Here's the deal, if you start, on day 1, producing more faom's then normal then you can maintain your current production (under the new system) by doing a bit more work. The amount of extra work you will need to do is however much production is lost on abandonments (even RCE abandonments) and "on final" allowances. For me, that is approximately .75 counts per bi week. So, instead of doing 6.something counts per bi week I do 6.something+.75 counts per bi week on avg for the first ~6 months while all my old counts are getting handled.

Jules you're a case study in why business people can pull sht over on people without them even knowing. And you're not alone.

But one thing you should be able to understand is that you can't have credit going "to the void" and not be losing out. It is impossible. That much should be apparent to you.

You can't just have a debt owed you "go away" and immediately be winning.

If you try to use the new count system going forward you will work harder at the beginning, as a start up cost, for a year or so before the extra hour actually is a net benefit to you.

If you stick to the old, of course everything is hunky dorey, but that's because no transition occurs.

[Inviting Body Punches]

xmnr-not6:

Your evidence proves my point. If the PTO hired 2 for every 1 that left, people WERE applying to positions, WERE accepting offers, and the art units WERE NOT emptying out.

You said it yourself--in 2008 the annual report indicates that the personnel count went up by 600 (note here: I assume the number of examiners rose as well as the number of total personnel).

Your conclusions aren't reasonable at all. You don't say WHY those who left did so, or what they did after they left. Maybe they were overwhelmingly women who left to have children--maybe their leaving had NOTHING to do with the pay, and maybe they aren't even in the workforce anymore. Maybe they were transfers to other federal government agencies.

Maybe the reasons for those leaving had NOTHING to do with the pay "relative to what they could get in the private sector". Once again, an examiner has no relevant evidence to support his/her position.

Ego Trip--No, my public sector experience was not at the PTO, but that doesn't matter--the institutional culture among all branches is similar.

Anon--That is why I used the word "eke". Nobody ever said that patent examiners, some of whom sit at their desks day in and day out and produce crap day in and day out, were deserving of any higher wage standard. A lower wage would not preclude them from starting small businesses of their own and augmenting their income if they want a higher instant standard of living. Plus, what they still get instead of a particular current wage standard is incredible job security and defined pension and health benefits, things that are considered by many to be LUXURY items these days.

xmnr-not6: "Infinitely faster" was only somewhat hyperbolic. The point is not to simply "examine" applications, but to at least "examine substantively well". We prosecutors have all received GARBAGE rejections and objections that are WORSE THAN NO EXAMINATION AT ALL, because they are unlawful, meaningless, expensive, and counter-productive. They represent economic waste. Therefore, they can be considered a sort of "negative examination", the positive utility of which is ZERO. Therefore, any positive utility afforded by a substantively well-performed examination IS infinitely better.

I've had it with public sector hacks like examiners--I'm here for a fight. No doubt there will be many examiners who oppose my views--alright, let's go at it. In for a penny, in for a pound. Someone's got to take you to task.

Take a look at 6's comment discussing the operation of the machinery--his/her discussion is from an ENTIRELY personal pecuniary perspective. What happened to the spirit of public service? The comment appears to clearly stem from an "us-versus-them" mentality. Fair enough--consider me one of "them".

[Erez Gur]

Yapex and Plurality,

You have to think about this issue from Kappos' perspective. He is not a public sector guy. and he needs to get rid of the backlog but has no money. The scenario I propose is a logical one from his perspective.

I said the fees would be 4x higher.

The USPTO would keep the same amount of money, but without the expense of examination, gets rid of the backlog and starts collecting renewal fees sooner, especially as the people who would choose this route are ones who really believe they will get a patent allowed.

The UKIPO and EPO already give you a FAOM within a year if you want, and I imagine would be happy to do it for the USPTO for the 3x fees they would get.

As for the KIPO I am certain they would gladly increase the size of their examination corps to get a share of that money.

There are other countries like Russia, Australia and India that would be happy to do this work.

And ultimately? I am certain that many former USPTO Examiners would be happy to set up private examination companies (even as subcontractors for foreign patent offices) and they would do fast and excellent work without worrying about counts.

[Jules]

6: "you believe that..."

"I believe in a long, prolonged derangement of the senses in order to attain the unknown."

Name that quote...

[Gravy train is out of gravy]

Examiners need to live in the real world like the rest of us.

For the most part, first, you are not attorneys. You are not even patent agents. You are engineers. The same guys who start out of college at 45k thousand or well under.

When I worked at the patent office, between overtime and mandatory bonuses I was making more than my former boss from the largest defence and space craft company in the world, who had 15 years of space craft design experience and who worked almost as much unpaid overtime as he did number of paid hours.

Examiners whine and cry, but their compensation is in the top few percent of those with engineering degrees.

Remember, examiners, you are not patent professionals. You are government engineers, and should (and do) get paid as such.

[Gravy train is out of gravy]

The point being, you are paid more than enough, your job is easy enough (can't con me and many others, we were examiners too and know how much time we spent playing solitaire), and you will do more work for less credit whether you like it or not, and no you can't sue the patent office.

[appealho]

http://www.youtube.com/watch?v=rnwppcD-SMc

there goes the gravy train examiners!

Ha ha

[Inviting Body Punches]

Out of gravy...

Exactly. The private sector engineers I know ALL work lots of unpaid hours, and then do not take comp time (well, all except for a couple of civil engineers working on ditches and stormwater ponds).

Furthermore, many of them have recently suffered job loss, reduced hours, or furlough, and are uncertain about their future. This includes both recent grad EIT's as well as 20+yr senior project engineers. Many of the senior personnel I know are right now looking overseas.

There is NO COST OF FAILURE borne by an individual working in the public sector, except in the most egregious cases--and then the failure is not related to the performance of one's duties, but instead failure to adhere to departmental policy such as prohibitions on porn surfing and theft of government property.

You know for whom I feel the most sorry, other than citizen applicants? Those few good examiners who really try to do a good job, and who work hard. There are some, who get inculcated into the institutional culture soon enough. I feel sorry for them because there is NOTHING THEY CAN DO TO ENABLE THEIR OWN EFFECTIVENESS. If the office is understaffed, it is because their available resources are poorly distributed, resulting in staff shortages. The workload gets dumped on some erstwhile examiner--it's not his/her fault he/she starts behind the 8-ball on day 1.

But they're hardened soon enough. Either that or they get pissed off and leave because they can't live with themselves in their new character as a powerless cog in the governmental machine.

The ones that are left are survivors, with the appropriate survival skill set. These are the people who are grossly overpaid. They are the game players, not the workers. By and large, they SUCK at being examiners--no knowledge, no expertise, no commitment to excellence. They just don't care.

They can't interpret new laws and regulations because they lack the skill and knowledge, so they rely on higher-ups to do it on their behalf, who then try to communicate to them their findings. It's like trying to explain semiotics to the pre-literate. The only way that they can do a good job is by pure accident, by chance. And even then, they better not try to articulate themselves, or the job will turn to garbage soon enough.

[Michael R. Thomas]

If increases in fees are nessary the only just thing to do is quadroople corperate fees according to there ability to pay. With any extra money establish a legal fund to level the playing field in court for small entities unable to afford infringement lawsuits.This will eliminate the need for patent trolls.Of course burn the patent reform act because it promotes murder of inventors theft of intellectual property slavery obstruction of justice fraud cival rights violations and does nothing to deal with the present attrocities of the system.

[Just an ordinary inventor(TM) ---]

Mr. Mike Thomas,

You cretinlay hvae the nial hit on the haed!

[Just Visiting]

Six,

Aren't you going to get the bulk of those counts back when you do final rejections on those cases? You were going to do those for free under the old system.

[Just an ordinary inventor(TM) ---]

Daer Mr. Mkie Tmohsa,

You cretinlay hvae the nial hit on the haed!

[broje]

Dear "Gravy train is out of gravy," I think "slightly less gravy" is more accurate. Also, "still just as much gravy as ever for Examiners who allow applications in between games of solitaire."

[6]

"You were going to do those for free under the old system."

Um no I was going to do them for a count when they came back abandoned. A full count. Not .75 of a count.

[Just Visiting]

"Um no I was going to do them for a count when they came back abandoned. A full count. Not .75 of a count."

This appears to be an objection to something other than losing the 0.25 count. But I agree that if you are only going to get .75 count for an RCE, you ought to also be given the extra half count for doing the FOAM.

[Lost in Transition]

"Aren't you going to get the bulk of those counts back when you do final rejections on those cases? You were going to do those for free under the old system."

The counts lost in transition are like the quick change scam. If you don't pay attention you won't realize you are being short changed.

Examiner 6 wasn't doing final amendments "for free" under the old system. It was bringing him one step closer to the 1.0 counts at abandonment.

Examiner 6 was expecting 2 total counts after disposal for all FOAM in the pipe under the old system. The new count system also says he should get 2 total counts after disposal but shifts the numbers around.

When they flip the switch at transition and give 0.75 counts per every FOAM they are "erasing" 0.25 counts for every FOAM in progress. The total counts will only tally up to 1.75

[anon]

"For the most part, first, you are not attorneys. You are not even patent agents."

That may be changing in the next couple of years provided (1) the supply of patent attorneys continues to outpace demand, and (2) the PTO starts hiring again.

[baby, it's not me, it's you]

"the supply of patent attorneys continues to outpace demand"

Exactly. That's where the pricing is out of wack. If examiners were overpaid and underworked, there would be no attrition problem. What I don't understand is why anyone needs to be paid $200/hour to respond to office actions. I'm pretty sure you could hire someone to argue unpersuasively for around $20. Heck, for $200, you could probably get some high school kid to make you a javascript random rebuttal generator. Excuse me, I meant highly nuanced argument generator.

But really, all the bitterness here is very telling in view of the numbers. Your cases keep getting stuck on the "RCE merry-go-round" yet 73% of cases never make it to RCE. You apparently keep having to appeal case after case, yet relatively speaking very few applications go to appeal. Did you ever consider that maybe it's you? Or perhaps you're a little too highly nuanced for your own good.

[6]

"That may be changing in the next couple of years provided (1) the supply of patent attorneys continues to outpace demand, and (2) the PTO starts hiring again. "

Indeed.

"I'm pretty sure you could hire someone to argue unpersuasively for around $20."

LOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOL

LOL ... LOL ... LOL ... L ... O ... L

"Did you ever consider that maybe it's you? Or perhaps you're a little too highly nuanced for your own good."

JEBUS I'M ON THE LOL MERRY GO ROUND.

LOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOLLOLOLOLOLOLOLOLOLOL

Ok ok ok.

"The counts lost in transition are like the quick change scam."

It's true. Except I don't really think they meant to do that. They were just rushed to find a solution and didn't work everything out. And to be honest, the hour pays it back in a year or so. However, the alternative, sticking with the old system but taking the hour that Kappos is "committed to giving us" is about 100x more awesome.

[A plurality of thresholding units]

Lost: Thanks for explaining that to everyone. Now if you can just get management and the POPA reps to understand....

6: Have your L and O keys worn off yet? Also, someone asked a pointed question about the lost quarter count at Thursday afternoon's briefing. Budens said that we'd make up for it elsewhere, and the question-asker's response was, "Yeah. VOT."

If POPA is successful in convincing management to put awards under the safety net provision as well, then it wouldn't really hurt things to put the plan into effect. There are a few nice features in the plan that are unrelated to the count system. (I'm not sure how this will work out, since POPA members are already voting on the plan that was presented.)

I worry, though, that once they start up a new plan, they'll decide that it's "good enough", and it'll be another 33 years before they finish their adjustments.

[inviting body punches]

Baby--

THERE IS NO ATTRITION PROBLEM.

The problem lies in public-sector sloth and/or understaffing: those doing the hiring don't/can't do it quickly enough.

What can be done about sloth? Start firing for cause.

What can be done about understaffing? Re-negotiate legacy costs and current labor costs to permit more staff within the same budget.

You don't understand $200/hr for responding to office actions? $200/hr to respond to office actions--let me tell you, sometimes it is hard to know where to begin to respond to an unlawful, convoluted, inarticulate office action. First, one has to be a linguist to decipher the "literary" components. Then one has to be a technical expert to divine exactly what it is that the examiner is trying to say. Then one has to be a lawyer to understand how what is being said comports or not with law and regulation. Then one has to be a businessman to know how to present this to the client, and to assist the decision of how to proceed.

Because of the potential value involved, the expertise, knowledge, and education required, and because the person responding to the office action ACTUALLY HAS TO ASSUME LIABILITY, a reasonably large fee is charged to cover all the costs that permit the respondent to do a good job, and to stand by that job.

THAT'S WHY WE CHARGE WHAT WE DO.

And so what if "the supply continues to outpace demand"? Even if true, we are subject to market forces, and things will adjust accordingly.

UNLIKE THE OUT-OF-CONTROL PUBLIC SECTOR.

[anon]

THERE IS NO ATTRITION PROBLEM.

You can claim it, but that doesn't mean it's true, friend. There is an attrition problem, and saying otherwise doesn't negate its existence.

[anon]

"Because of the potential value involved, the expertise, knowledge, and education required"

Care to indulge us as to your technical expertise? Master's? PhD? or BS degree from 20+ years ago?

"And so what if "the supply continues to outpace demand"? Even if true, we are subject to market forces, and things will adjust accordingly."

Do you mean a "race to the bottom" with regards to your fees?

[inviting body punches]

Oh, and I forgot to include: OVERHEADS. All the costs of doing business, something public sector employees wouldn't understand.

Anon--nice totally meaningless response.

Anon--Attrition--a reduction or decrease in number, size, or strength. According to xmnr-not6's recital of the GAO report on 2002-2006, the PTO hired 2 examiners for every 1 that left.

Just because you claim that there IS "an attrition problem" doesn't mean it's true, friend. You have proven neither attrition or the fact that it is a problem.

A race to the bottom wrt fees might happen, as did a race to the top. That is market cycling at work. At some point, people will be able to make a better living doing something else, some will leave the field, some will choose to do other things and not enter it in the first place.

SO WHAT? I live in the real world, and these things happen. You adjust accordingly, plan for the worst, and work for the best. It is called life, with all of its natural triumphs and pitfalls.

The public sector, on the other hand, is deeply unnatural. When I was a kid I used to naively believe that the patent office, and patent work, would be different--boy was I wrong. It SHOULD be different--it should be a co-operative system, and not coercive and penal like other government systems. It has turned into sort of an incentive program, not unlike federal monies available to schools that meet federal requirements and jump through the appropriate hoops.

With the same public sector employees that hop around the different agencies.

I'm still waiting for ANYBODY to provide any sort of a substantive rebuttal to my basic position: the contracts negotiated with public sector unions, including those "representing" patent examiners, weigh much too heavily in favor of the unions and against the public interest. They were improvidently negotiated on a tilted playing field. We realize this now more than ever, with EVER DECREASING LEVELS OF SERVICE AND EVER INCREASING LEVELS OF COST IN ALL AREAS OF SERVICE PROVIDED BY GOVERNMENT AT ANY LEVEL.

BRING IT ON

[anon]

You have proven neither attrition or the fact that it is a problem.

I don't need to prove it, thanks. Just trying to help you understand the basic math of the situation.

There is significant attrition among new examiners. There is a relationship between number of examiners and pendency. Regardless of the quality of the work put out, there is a certain amount of work to be done, and having more people means getting it done faster. As filings are rising at an increasing rate on a long term scale, that means that even if there was no hiring and no attrition, the office would still be losing its capacity to meet the level of work needed. Attrition, ceteris paribus, works directly against this need. Fewer examiners, less work accomplished, growing backlog.

Attrition is a problem. Attrition also exists. But if you don't want to believe it, it doesn't really affect me either way.

[A plurality of thresholding units]

Inviting: "Anon--Attrition--a reduction or decrease in number, size, or strength. According to xmnr-not6's recital of the GAO report on 2002-2006, the PTO hired 2 examiners for every 1 that left.

Just because you claim that there IS "an attrition problem" doesn't mean it's true, friend. You have proven neither attrition or the fact that it is a problem."

So, why do you suppose that the PTO was hiring two examiners, at the rate of 1200 per year, for every one that left? Could it possibly be because of an *attrition problem*?

Do you not consider losing over 10% of your workforce every year to be an attrition problem?

[inviting body punches]

Anon and Plurality--Are you guys insane? You must totally eschew the western tradition of rational inquiry.

"attrition among new examiners"--ridiculous parsing! That's like me saying "no attrition among senior male examiners 48-52 yrs of age".

"having more people means getting it done faster"--NOT in the public sector. It might mean more activity, but does not certainly translate into effective task completion.

"fewer examiners"--show me from PTO sources where it says that there has been a net loss in the number of examiners say, over the past 5 or 10 or 20 years.

You guys are so entirely full of crap--from the PTO website, the total number of examiners in utility, plant, and reissue by quarters of FY2009
6063, 6229, 6157, 6143.

A NET GAIN OF 80 EXAMINERS IN FY 2009.

"filings rising at an increasing rate"--BULLCRAP. From PTO Statistics for 2008, 07 versus 06, +11.2%; 08 vs 07, +1.8%; expected 09 vs 08, -10.0%. Not only is the rate of increase not increasing, there isn't even a sustained increase!

"losing 10% of your workforce every year"--ridiculous parsing!!!!! The net workforce is RISING. And NO, it is NOT AN ATTRITION PROBLEM--IF A PROBLEM AT ALL, IT WOULD BE A TURNOVER PROBLEM.

KEEP COMING, WANKERS--I WILL NEVER STOP.

THIS IS A HILL TO DIE ON.

[anon]

"ridiculous parsing!"

no kidding!

[inviting body punches]

Anon--

Thanks for making that comment--it gives anybody watching an idea of just how useless you are to any meaningful treatment of this issue.

[A plurality of thresholding units]

Inviting: The PTO hired about 600 new examiners in FY'09, and that translated into a net gain of 80 examiners. Whatever pointless semantic arguments you want to have over this, it still represents a big problem.

[inviting body punches]

Plurality--

The argument was made by YOU GUYS, I'm merely responding to it. And it was not merely semantic, it was substantive.

Someone's assertion was that life for examiners is bad enough as it is, that is why there is attrition, and that lower wages would lead to less applicants, less accepted offers, and emptying art units.

There is NO attrition, life for examiners is better than it should be although possibly getting worse, and while getting worse, there is a net gain--no emptying art units.

You guys are worse than useless--you are counterproductive and obfuscatory.

A problem? THE problem is that by far the vast majority of you examiners are INCOMPETENT, and even if competent, are working under incompetent direction, and even if competent and working under competent direction, are ENTIRELY SELF-INTERESTED AND TACTICAL.

You're incompetent because it is impossible to administer a law correctly or appropriately without understanding that law. You lack sufficient basic knowledge of things like the limits of your authority to regularly lawfully effect the edicts of your superiors. The PTO has misallocated resources such that there are now insufficieint resources allocated to oversight of your activities. That misallocation was and is the result of unsustainable policies of both congress and the executive branch, and the unsustainable de facto policies articulated in US Supreme Court decisions.

Those policies reflect the failure by the relevant bodies to give full effect to the interests of the entire citizenry in favor of a particular segment thereof.

Over time, your granted powers beget an institutional culture that identifies its own interests apart from those of the entire citizenry, and the individuals within that culture adjust their attitudes appropriately.

You're not working for US, your're working for yourselves.

You as an individual are incompetent (by selection and lack of training), ego-centric (by total enmeshment in the institutional culture), and totally inarticulate (by individual failure). Not only can you not formulate a cogent argument, you cannot even recognize when one of your comrades has done so.