U.S. Patent and Trademark Office:

Performance Management Processes

GAO-10-946R: Published: Sep 24, 2010. Publicly Released: Sep 24, 2010.

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Franklin W. Rusco
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The Department of Commerce's U.S. Patent and Trademark Office (USPTO) grants patents that protect innovations ranging from new treatments for diseases to new wireless technology applications. Over the last several years, increases in both the volume and complexity of patent applications have lengthened the time between when an application is submitted and when a final decision is made--referred to as patent pendency--and resulted in a current backlog of over 700,000 applications. For several years, concerns have existed about USPTO's ability to recruit and retain enough qualified patent examiners to reduce this backlog. In 2005 and again in 2007, we identified numerous challenges related to USPTO's ability to modernize its human capital management system and hire and retain a qualified and well-trained patent examination workforce. Recently, USPTO management has also recognized the need for changes in its performance management system and additional training for its employees and managers. In this context, Congress asked us to obtain additional information on the performance management of USPTO's patent examination workforce. Specifically, Congress asked us to describe (1) USPTO's processes for evaluating the performance of supervisory patent examiners (SPE) and patent examiners, and the actions that the agency takes when performance is at an unacceptable level; (2) USPTO's process for promoting patent examiners to the SPE level; and (3) how newly promoted SPEs are assigned to various units and the training they receive throughout their career.

USPTO has similar processes for evaluating SPEs' and patent examiners' performance. However, patent examiners receive additional checks on their performance, and patent examiners and SPEs are rated on different elements. According to USPTO officials, in April 2010, USPTO implemented a revised SPE performance appraisal plan and is currently revising the patent examiner performance appraisal plan, which it expects to implement in 2011. USPTO's processes for addressing unacceptable performance are similar for patent examiners and SPEs, although there are some differences for examiners and SPEs who are newly hired and recently promoted, respectively. For example, those patent examiners in their first 2-years of employment (trial period) can generally be discharged by USPTO for unacceptable performance without first going through a process which includes issuing oral and written warnings, which is required in addressing unacceptable performance in other patent examiners. In addition, during newly promoted SPEs' 1-year probationary period if their performance is unacceptable and they do not improve their performance after receiving a written warning, USPTO may return them to a nonsupervisory patent examiner position and pay grade. USPTO's process for promoting examiners to supervisory positions relies largely on examinations and five key criteria, including their ability to supervise and perform administrative duties, and their knowledge of scientific and technical matters. From fiscal years 2005 through 2009, 1,247 people applied and 337 were promoted at USPTO to the GS-15 SPE position. USPTO generally assigns newly promoted SPEs to clusters of specific related patent technologies, known as "art units," on the basis of the SPEs technical expertise and requires management and supervisory training throughout their career. Most new SPEs are generally assigned to art units on the basis of the technology they are most familiar with, but according to USPTO officials this scenario is not always possible. The agency requires that new SPEs take introductory and specialized supervisory training, and requires all SPEs to take additional training throughout their career. In addition, USPTO recently implemented a leadership development program that allows SPEs and others to assess their leadership skills and set goals to develop or improve their skills.

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