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By Joseph Marks
Sept. 13 — The Patent and Trademark Office has already taken disciplinary action against patent examiners—including firing some—identified by an inspector general’s report as possibly claiming unworked hours, PTO Director Michelle Lee told lawmakers Sept. 13.
The punishments range from firing and sending letters of reprimand to counseling employees and making them repay ill-gotten wages, Lee told members of the House Judiciary Committee’s intellectual property panel.
The PTO disciplined the employees based on its own systems for identifying time and attendance abuse—not on the watchdog report released Aug. 31 by the Department of Commerce inspector general’s office, a PTO spokeswoman said. The report found patent examiners claimed credit for at least 288,000 hours they may not have actually worked during a 15-month period, ending November 2015, possibly bilking the government out of more than $18 million.
Lee repeated several times that the PTO “takes any allegation of wrongdoing in our workplace very seriously” and that “any hour claimed by any of our employees as worked that was not is unacceptable.”
Lee also questioned the report’s methodology, however, noting that the datasets the inspector general used to identify unworked hours were not designed for that purpose.
The report compared examiners’ reported hours with evidence they were actually working at those times, such as badging in and out of the PTO’s Alexandria campus, connecting to PTO computer systems and accessing patent application materials online.
That wouldn’t account for teleworking employees studying printed documents offline, Lee said. It also wouldn’t distinguish between employees who reported unworked hours versus employees who reported their total hours correctly but didn’t identify particular days they left early or worked late.
“I’m not saying that misreporting isn’t problematic,” she said. “It’s certainly a problem and that’s something we’re going to fix, but is that fraud? Is that service denied the United States Patent and Trademark Office? No, it’s not.”
Lee touted the time and attendance checks put in place by the PTO, including a dashboard that shows supervisors where examiners are in the process of reviewing each patent with red, green and yellow indicators to track if they’re meeting deadlines.
House Judiciary Chairman Rep. Bob Goodlatte, (R-Va.), called the number of possibly unworked hours “astounding” during the Sept. 13 hearing. Rep. Darrell Issa, (R.-Calif.), who chairs Judiciary’s Subcommittee on Courts, Intellectual Property and the Internet, said the report raises broader questions about whether examiners are shirking their duties and simply “rubber stamping” applications.
Both lawmakers focused the majority of their questions for Lee elsewhere, however. Issa told reporters after the hearing that he remains concerned about the report’s conclusions but credited the PTO for being transparent with the committee about efforts to address the problem.
“Whenever you do oversight and you have cooperation by the administration, it mitigates some of the rancor you often see,” he said. “The director has been open and transparent and certainly made us able to see what she’s doing.”
The subcommittee’s ranking member, Rep. Jerrold Nadler, (D-N.Y.), also questioned the report’s methodology. He noted that, even if fully correct, the allegedly unworked hours only total 2 percent of total examiners' hours during the 15-month report period, and only 1.6 percent of hours during the final 9 months.
“I would think that most employers would think 1.6 percent is not too bad,” he said.
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Lee's testimony available at http://src.bna.com/iy4.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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