Patent Examiners Regularly Engaged In Fraud And Abuse Via Telework Program

from the and-lied-about-it dept

For quite some time now, we've discussed how the USPTO had a massive backlog, and that former boss David Kappos solved this "problem" by getting examiners to approve more patents faster, mainly by lowering their standards and granting more patents. Whenever we write about this, we hear about overworked patent examiners who are really trying their best. Except, it appears that the system is actually rife with abuse and fraud by patent examiners:
Some of the 8,300 patent examiners, about half of whom work from home full time, repeatedly lied about the hours they were putting in, and many were receiving bonuses for work they didn’t do. And when supervisors had evidence of fraud and asked to have the employee’s computer records pulled, they were rebuffed by top agency officials, ensuring that few cheaters were disciplined, investigators found.

Oversight of the telework program — and of examiners based at the Alexandria headquarters — was “completely ineffective,” investigators concluded.
This comes on the heels of a similar report about the paralegals who work at the USPTO. We had skipped that story, because it wasn't the actual examiners, but it appears that the story with examiners is basically the same. Generally, the ability to telework is a good thing, offering lots of flexibility for those who can handle it, but it's certainly also open to abuse by those who can't (or by those who wish to abuse the system). It appears that the USPTO set up the worst of all worlds in creating a telework system with no way of either truly monitoring how it was being used or any way to stop any abuses.

Oh, and worse, the USPTO then tried to hide all of this... but I'll leave that for my next post...

Reader Comments (rss)

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  1.  
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    Roger Strong (profile), Aug 11th, 2014 @ 1:36pm

    Well that's disappointing.

    I already had to accept that paralegals weren't emergency legal teams who would come parachuting down out of the sky when some CEO, rock star or politician had a lapse in judgment.* Now I find out that many just stay home and browse the web.

    * No doubt because the idea was patented.

     

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  2.  
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    Anonymous Coward, Aug 11th, 2014 @ 1:49pm

    need to be careful, Mike. if you do this whistle-blowing thing, you know what happened to Edward! he may well welcome the company, but could you handle the cold (shoulder)?

     

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  3.  
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    DannyB (profile), Aug 11th, 2014 @ 2:25pm

    Patent examiners rubber stamping from home?

    So they really were rubber stamping patent applications.

    Wow! What a great job! I want one. Work from home on a difficult to measure task. And get paid.

    http://dilbert.com/strips/comic/1994-09-08/

     

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  4.  
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    Anonymous Coward, Aug 11th, 2014 @ 3:18pm

    Believing it was so many employees doing this with no direction would make you blind the orders came from somewhere , as to not fall on the shoulders of the top paid guys.

     

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  5.  
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    Whatever (profile), Aug 11th, 2014 @ 6:34pm

    I read the headline and then chuckled, mostly because I know where this is going.

    A few months from now, there will be a new push on Techdirt to abolish patents because the Patent Office has a history of "abuse and fraud". That will link to a story that links to a story that finally links here. Most people won't follow that many links, and will think it means "abuse and fraud in regards to patents" and not to numbers of hours worked.

    Oh, and before anyone goes off on me, yes the abuse and fraud of the telework program is bad and heads should roll. But it's about the way that the office dealt with HR, and not about the work performed when it was done.

     

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  6.  
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    Sunhawk (profile), Aug 11th, 2014 @ 6:42pm

    As someone contemplating doing a stint as an examiner (because God knows they need more people in the tech fields), and who did some similar 'self-reporting timesheet' work in the past, this irritates me a little more than usual.

    It's *telework*. You're in your comfort zone, you've got food available, you can be listening to music without your cubicle neighbors telling you to turn it down, you can keep an eye on kids... you've got no excuse (well, you don't have one anyway) to commit fraud.

     

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  7.  
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    That One Guy (profile), Aug 11th, 2014 @ 7:14pm

    Re:

    Perhaps, just maybe, instead of making baseless dismissive claims about what you're 'sure' is going to happen, you could do a little research on the site and see the actual views of those who write for, and post on, TD.

    Maybe start here:
    https://www.techdirt.com/search-g.php?q=patents

     

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  8.  
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    Anonymous Coward, Aug 11th, 2014 @ 7:18pm

    Government corruption? Nothing to see here folks, just business as usual.

     

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  9.  
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    Anonymous Coward, Aug 11th, 2014 @ 7:35pm

    Re:

    "Most people won't follow that many links, and will think it means "abuse and fraud in regards to patents" and not to numbers of hours worked."

    Doesn't the number of hours worked affect patent quality? So wouldn't abuse and fraud on the number of hours work be essentially the same thing as abuse and fraud on patent quality? And doesn't this type of abuse and fraud reflect on the overall character and the trustworthiness of patent office employees and on the hiring practices of the USPTO?

     

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  10.  
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    Anonymous Coward, Aug 11th, 2014 @ 8:32pm

    Re: Re:

    If the number of hours worked does affect patent quality then patents aren't expensive enough to be examined to provide sufficient exam hours per patent.

    Patent Quality is not directly tied to exam hours per patent nor is it a good measure of patent quality. Patent Quality, by the USPTO, is a measure of how many patents without major error are allowed so that the 'stakeholders' (Patent Lawyers / Corporations as identified by D. Kappos) are satisfied.

    To be succinct - this clearly implies that any Patent Application can be rejected given sufficient time.

     

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  11.  
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    Anonymous Coward, Aug 11th, 2014 @ 9:40pm

    Re:

    That assumes that you or anyone else cares if you do your job properly. If not, you have the opportunity to get paid a full-time salary while working only a few hours each week, so you get to spend the rest of the time doing something else. It seems hopelessly naive to hope that no-one would, especially in a fairly mediocre job like that of patent examiner.

     

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    Whatever (profile), Aug 11th, 2014 @ 10:36pm

    Re: Re:

    The thing here is that the story says nothing about quality of the work done, just the AMOUNT done. So as an example, if the average time to process a patent is say 20 hours (2 per week), then examiners could get an easier case (something pretty direct) and approve it in only a few hours - but still "work" the rest of those hours on their golf game or cleaning out the basement or whatever.

    Nothing here at this point indicates that patents were passed without due consideration, only that some telework staff may have been padding out their hours worked for personal benefit.

    doesn't this type of abuse and fraud reflect on the overall character and the trustworthiness of patent office employees and on the hiring practices of the USPTO?

    Not really. It reflects perhaps on a certainly level of management failing and naivety when it comes to managing remote workers. Telework is very liberating for staff, but it can at the same time also be too much temptation for some. Great workers in the office aren't always great remote workers. That is a question of how the program and the staff are managed, and not in the hiring or trustworthiness of that staff. It's almost exclusively a management issue, I think.

     

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  13.  
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    PaulT (profile), Aug 12th, 2014 @ 12:26am

    Re:

    "A few months from now, there will be a new push on Techdirt to abolish patents because the Patent Office has a history of "abuse and fraud". "

    Well, it clearly does. This is just the latest example, most importantly that the management have actually created more problems by dealing with the problems they've already caused elsewhere. In no way does the fact that the abuse in this specific case was more of a staffing issue rather than the patent system itself mean that nothing should be done about the way these things are processed.

    Instead of doing your smug act, why not address the story in front of you? Come on, explain why evidence of fraud and abuse should not be used to question the way patents are processed. Explain why this, along with many, many other flaws in the system including the concept of software patents themselves, should not be due for an overhaul.

    Try participating in a debate, rather than trying to pretend your own one-sided opinions must be the truth.

    "But it's about the way that the office dealt with HR, and not about the work performed when it was done."

    Really, so you don't have a problem with patents that were pushed through the system with little to no processing (given that at least some of the claimed work wasn't actually done). Patents that weren't given due diligence before being accepted should not be questioned, and can quite happily be used for the abuse we see times and time again against innovators and competitors, as long as the excuse is that it's an HR issue.

    Sorry, I disagree wholeheartedly, for reasons that should be astoundingly obvious. Patents affected should be re-examined at the very least.

     

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  14.  
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    PaulT (profile), Aug 12th, 2014 @ 12:34am

    Re: Re: Re:

    "Nothing here at this point indicates that patents were passed without due consideration"

    FTFA: "many were receiving bonuses for work they didn’t do"

    Which work would they be bonused for, if not the number of patents were processed (and therefore passed/rejected)? There may be other work under the bonus schemes, but to my mind that seems to be one of the most logical areas where a bonus would apply. Given that they repeatedly lied about the hours and work they were doing, it's a logical conclusion that patents were indeed being passed without due consideration by those lying about those things.

    Do you have access to documentation that details how their bonus works, and therefore prove that no patents were passed without due consideration? What are you basing your claim on, apart from your obsessive need to be contrarian against every article here?

    "not in the hiring or trustworthiness of that staff"

    Unless you've mistaken the comment you were replying to as an attack on teleworking itself (which it wasn't), how the hell did you come to this conclusion? The fact that staff repeatedly lied about the work they were doing doesn't reflect on the trustworthiness of the staff? WTH?

     

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  15.  
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    AtPatentoffice, Aug 12th, 2014 @ 5:46am

    Problem not really the Patent Office but Patent Examiners Union

    Note: This is not meant to be union bashing.

    But, that said, the PE Union contract prevented a LOT of the abuses from being prosecuted. Management was afraid of offending the Union when trying to prosecute and thus would only go after the worst offenders.

    And those who were in charge of tracking down the Waste/Fraud/Abuse were discouraged by both of the above from doing so...

     

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  16.  
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    DannyB (profile), Aug 12th, 2014 @ 6:11am

    Re: Re:

    > Doesn't the number of hours worked affect patent quality?

    No. It does not.

    The number of hours that a USDA worker works inspecting meat also does not affect the quality of that meat. Just because the meat gets a PATENT GRANTED rubber stamp does not mean people won't get sick and die from eating it.

     

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  17.  
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    Anonymous Coward, Aug 12th, 2014 @ 7:49am

    Re: Re: Re: Re:

    This is what I don't understand.

    I've been told that patent examiners get paid just like farm workers: basically, you get paid for the number of cases you examine, not for the number of hours you work.

    However, some genius also put them on one of these timesheet systems where they are required to 'swear and affirm' that they worked X hours in order to put out the cases they put out.

    I understand that productivity is highly variable from examiner to examiner. So some examiners will work 30 hours to make their nut, while others will work 60. In a week.

    But.

    You only get paid according to the hours you put in. Which leaves the productive ones getting punished for their productivity.

    Oops.

    So instead, the time sheet system is turned on its head and is used to make official the productivity of the examiner.

    Seems like Washington Post has about the same journalistic standards as CNN or Fox News. If the 'story' is that examiners are falsifying their timesheets, well, welcome to their world. They typically are 'given' about 30 hours at entry level to examine a case (that means searching, checking for formal issues, writing up a preliminary decision, decoding the response from the attorney, writing up the final decision). This is of course a baseline, an average. Some cases go faster, some go slower.

    If it takes longer than 30 hours to dispose of a case, the examiner just sucks it up and puts in the extra time.

    Without reporting it.

    Let me guess if the reporters at the Washington Post said anything about that kind of timesheet falsification.

     

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  18.  
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    PaulT (profile), Aug 12th, 2014 @ 8:13am

    Re: Re: Re: Re: Re:

    "basically, you get paid for the number of cases you examine, not for the number of hours you work."

    "You only get paid according to the hours you put in. Which leaves the productive ones getting punished for their productivity."

    OK, I'm confused here, as that's a clear contradiction. How can it be true both that you get paid for the number of cases examined *and* for the number of hours worked? Unless you mean that they get paid for X number of hours but then bonused on the number examined?

    Bear in mind that the article doesn't just claim that the number of hours worked was lower than reported, but that bonuses were claimed that the worker wasn't entitled to. I'm interested mainly to see what that refers to - do you have that information?

    "Let me guess if the reporters at the Washington Post said anything about that kind of timesheet falsification."

    Well, if it was never reported, probably not. But, willingly putting in free hours is very different from claiming hours/bonuses that were never earned.

    Same with my employment - as a salaried worker, I routinely do different hours to that I'm officially contracted to do in order to get my job done. Sometimes this means overtime claimed back against days off in lieu, sometimes working on a Saturday instead of my standard weekdays. That's fine, and it's nobody's business except for my manager and HR unless there's a feeling that I'm being exploited or illegally forced to work well outside of my contract. But, if I did it the other way around and routinely went home 4 hours early or lied about what I've been doing in order to get more bonuses? You'd better believe that would be a firing.

    Why do you think it's different here?

     

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  19.  
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    In the Know, Aug 12th, 2014 @ 8:18am

    Some Missing Points

    Patent Examiners work on a production system, similar to a quota. Some can get their work done in less time, others take more (humans don't all have the same abilities). The Patent Office is a Performance Based Oganization and every individual's performance is closely monitored, quantity and quality. If you are given 10 hours to a task, and it only takes you 8, and that's an average that works for you, what do you do with the extra time? Many work it and claim the bonus that's been mentioned for producing more units than were expected of them. Also, keep in mind that "not working at telework" is the same as reading the paper in your office or taking a smoke/coffee break. The only difference is where you are. Still, at any organization, there will always be a minority that are poor performers and system abusers. The larger the organization, the more of those people that make up that minority. Everything is relative, so be careful with generalizations

     

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  20.  
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    ThatFatMan (profile), Aug 12th, 2014 @ 9:00am

    Re: Problem not really the Patent Office but Patent Examiners Union

    That pretty much hit the nail on the head.

     

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  21.  
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    John Fenderson (profile), Aug 12th, 2014 @ 9:09am

    Re: Re: Re: Re: Re: Re:

    "How can it be true both that you get paid for the number of cases examined *and* for the number of hours worked?"

    Maybe the PO runs things like where I work: I get paid a salary, but I also account for my hours worked (and if I don't work the hours, I don't get paid for them).

    This is good for my employer: all the benefits of paying employees a salary (namely, never having to pay overtime even though most employees work more than 40 hours) without any of the (few) disadvantages. This is bad for the employees: all the disadvantages of being paid a salary, while eliminating the only actual advantage to it.

    In other words, it's a scam.

     

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  22.  
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    mitch, Aug 12th, 2014 @ 1:46pm

    define abuse, define work

    The abuse is NOT them finishing a cases early and twiddling their thumbs for a few hours. The abuse is failing to finish little to no work in 80 hours, certifying that they did work, and then finishing cases by cramming it in at the end of a quarter.

    But this is not really abuse because they are rated over a quarter, meaning their job defined as completing X number of cases in a quarter not in two weeks.

     

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  23.  
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    Whatever (profile), Aug 12th, 2014 @ 9:42pm

    Re: Re:

    Well, it clearly does. This is just the latest example, most importantly that the management have actually created more problems by dealing with the problems they've already caused elsewhere.

    What you are doing is exactly what Mike would hope you do, which is confuse a management issue in telecomputing (which many companies screw up, it should be noted, you can google it and see all the scams and cheaters) against the quality of the patents issued. Having an employee do the work and mark twice as many hours doesn't mean the work was not done.

    so you don't have a problem with patents that were pushed through the system with little to no processing

    There is no proof of that here. That is what Mike is trying to imply, but the report doesn't seem to be stating that.

    So yes, I would have a problem is patents are not getting reviewed and just getting rubber stamped without consideration. However, there is a solid lack of proof in this report.

     

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  24.  
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    PaulT (profile), Aug 12th, 2014 @ 11:52pm

    Re: Re: Re:

    "Having an employee do the work and mark twice as many hours doesn't mean the work was not done."

    Of course it doesn't, only a moron thinks that number of hours worked = productivity. But, repeated fraud does indicate dishonest employees, so the work they do is suspect.

    But, of course, you're too dishonest to address the entirety of my comments here. You conveniently ignore the direct questions I asked above so I'll repeat one of them here:

    "FTFA: "many were receiving bonuses for work they didn’t do"

    Which work would they be bonused for, if not the number of patents were processed (and therefore passed/rejected)?"

    Got it? The focus is not on the number of hours worked, it's on the work that was not done. If someone's claiming bonuses that they were not entitled to, while lying to their employers, then the work they do has to be questioned. Unless, of course, you have evidence you're basing your own claims on, in which case please share it.

    Answer that, if you dare to be an honest human being.

    "There is no proof of that here. "

    Apart from what's stated in the article, including the linked primary source. If you have other evidence, cite it, stop whining.

    "However, there is a solid lack of proof in this report."

    In other words: "I don't like it so I'll refuse to believe it just because I say so". Your childish fallback tactic when lying and deflection aren't going to work.

     

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  25.  
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    Popcorn, Aug 14th, 2014 @ 7:08pm

    Re: Re:

    "mediocre"? Haha, you obviously have no idea what a patent examiner does. I challenge you to take this job and see if you'll last a week. Why do you think one of two newly-hired examiners quit within one year of hiring? And not to mention, some senior examiners have quit despite having signatory authority and the ability to work from home full time.

     

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  26.  
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    MaxVal, Aug 22nd, 2014 @ 6:31am

    Patent examiners need a Re-examination??

    Work from home shall be used wisely as long as it is used in a judicious manner. The report also says that its possible only to calculate the total hours available for the day and not the hours the examiners worked. Since, the Patent examiners are directly responsible for the country's innovation that is in turn connected with it's economic development, USPTO should come up with a firm process to make the examinations faster and effective as well.

     

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