USPTO and "Telegate"

by Fenwick & West LLP

By now, we've all heard of the controversy regarding the lax oversight at the USPTO of examiners in the Office's Telework Program--what I'll unofficially dub as "Telegate."  Now, the House Oversight and Government Reform Committee just announced an investigation into the abuses of the program.  

In brief, at the request of the Inspector General, the Office conducted an internal investigation into four allegations: 1) time fraud by examiners, 2) "end loading" of work (waiting until the end of a production period, and then cramming), 3) mortgaging of work (recording work as complete in one production period, and then completing it in a later production period), and 4) improper quality control. The task force that conducted the investigation produced a  32-page report that detailed numerous abuses of the system by examiners, and attempts by managers to correct these abuses that were met with procedural roadblocks, resulting in slap-on-the-wrist penalties. But instead of providing this report to the IG, the Office created a watered-down 16-page version that stated that the investigators were unable to find objective evidence of fraud and abuse, a finding contrary to the facts set forth in the original report.

Of course, I have no actual knowledge of whether examiners committed such abuses, and I'm certainly not an apologist for the Office.  I can say that as a user of the system, I have day-to-day contact with examiners, and have frequently had to deal with examiners who telework.  Sometimes this works out, and sometimes it does not.  I've had numerous cases where it took weeks to schedule an interview with a teleworking examiner, due to their failure to return calls, and where efforts to escalate the problem to a SPE failed.  I've had instances where I travelled to the USPTO to have an in-person interview, and the examiner failed to show up because he or she was teleworking and did not realize the interview was to be in person--even though it was plainly stated on the interview request form.  And we've all experienced problems in getting an examiner to take up an after final amendment or RCE ("given my docket, I'll get to your RCE in about 34 months").

To be fair, these examples are in the minority--the majority of the examiners I deal with, including the teleworkers, are conscientious, return calls and emails, and act on submissions in a timely manner.  

More concerning from the original report are the difficulties that SPEs and Directors had in attempting to stop abuse by some examiners.  The Office maintains "swipe" records of when employees enter and leave USPTO buildings, and records of when examiners are using their computers.  SPEs and Directors told the investigators that they were blocked by upper management from accessing these records to verify the working hours of those under their supervision.

Looking the other way was apparently cultural: "Twenty percent (20%) of all the Directors said that they felt the Agency was willing to overlook misconduct as long as the examiners' performance was acceptable."  Here is one shocking example of the problem:

During the mortgaging investigation, the ER Specialist discovered that the hoteling examiner had been misrepresenting a substantial amount of hours on her timesheet. The examiner claimed to have worked 265.5 hours for which there was no evidence she was working, and received $12,533.02 in pay for those fraudulently claimed hours. When the TC was notified of the time fraud, they asked the ADC if they could use the computer records as evidence so she could be charged with misrepresenting her timesheet. The ADC refused to allow the TC to use the computer records as evidence; as such, the examiner was not charged with time fraud. 

Rather than being fired for such abuse, or even having to pay back the money, the examiner served a 10-day suspension.  But the worst was yet to come: "Sometime after the conclusion of this case, the ADC notified his TCs [Technology Centers] that he will not approve any requests for swipe or computer records, period." The upshot to Directors and SPE: Don't even try to stop the abuse.  Go along to get along.

The justification for not allowing managers to review swipe and computer records was that it would potentially instill a "Big Brother" atmosphere: "asking and receiving records may affect the morale of all employees and feel we are big brother," said one Director.  Odd, I thought that if you're working for the Government you knew you were working for Big Brother, but that's just me.  In any event, automated time and attendance systems are very common these days in both government and the private sector, and employers' use of swipe records is entirely legal and appropriate.  No wonder the final report found no "objective evidence" of time fraud, because managers were blocked from getting the facts, a perfect catch-22.  

It's hard to estimate the actual amount of money that was improperly paid to examiners, but that's secondary: the real issue is that this was money that our clients paid for examination.  Unlike other government agencies, the USPTO is funded directly by the fees our clients pay, not general taxpayer dollars. When examiners falsify time records, they are stealing from the very people that they are there to serve.   

The Office must take immediate action to stop the abuses set forth in the original report, and restore the trust that we the practitioners and our clients have in the system.  Deputy Directory Michelle Lee recently stated that "there are extensive accountability systems applied to patent examiners. They are closely bound to production requirements, and supervisors closely review their work."  If Lee is referring to the existing "accountability systems," then it's not clear these are sufficient, given the findings in the original report.  The Office should allow managers to use the tools that are already available to enable them to appropriately supervise their employees, and then to take action when misconduct arises.  It should not take an act of Congress to get examiners to show up to work and do their job.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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