The USPTO Doesn't Deserve to be Attacked by the Oversight Committee

A couple of weeks ago (December 7, 2016), the Government Operations Subcommittee of the House Oversight and Government Reform Committee held a hearing on time and attendance fraud at the USPTO; the hearing was based on the report from the Office of the Inspector General for the Department of Commerce. A number of members of the subcommittee claimed that the IG’s report showed fraud at the USPTO, as did the current acting IG, David Smith (who testified at the hearing).

The Washington Post followed the “fraud” narrative as well:

And a 15-month analysis, released in August by Deputy Inspector General David Smith, of thousands of patent examiners’ turnstile badge swipes, computer log-ins and remote computer connections to federal systems showed consistent discrepancies between the time employees reported working and the hours they actually put in.

This time and attendance abuse cost the government as much as $18.3 million, with employees who review patent applications billing the agency for almost 300,000 hours they never worked, investigators found. They said the full scale of the fraud is probably double what the numbers show, because they gave employees the benefit of the doubt: If they badged in once at the agency’s Alexandria headquarters or logged in at home, they got credit for a day of work.

There’s a problem with this reporting: the IG’s report did not show evidence of fraud. I’ve already written about a number of problems with the report; I won’t go through those again. Basically, the IG identified situations where the digital footprint (e.g., system logins, network connections, and badging into the USPTO offices) didn’t match time claimed on time cards. It found 415 or so examiners with big mismatches out of around 8,000 total examiners. But the IG did not look further to determine if examiners were actually working during time claimed. The USPTO has been investigating on its own and has already made changes to make it tougher for examiners to commit time and attendance fraud. The scale of the alleged abuse is fairly small, as I’ve explained elsewhere.

Regardless, there’s another big problem with this whole report and the most recent hearing: they’re distracting from the USPTO’s genuine efforts to improve quality.

Last week, the USPTO held an event focused on those efforts, which include:

  • A pilot program on improving the clarity of the record;
  • Training patent agents and attorneys on patent examination practice and procedure;
  • A new master review form to assist quality assurance specialists in reviewing examiner actions;
  • Case studies on subject matter eligibility rejections; and
  • Cooperation with foreign patent offices to make it easier to search worldwide patent families.

Even if you think the USPTO isn’t doing a great job, it should be clear that the Office is trying hard to improve. This is not a federal agency that is complacent about its mission.

The USPTO does not need the distraction of unnecessary Congressional investigations into relatively minor time and attendance problems. It needs to be allowed to continue its focus on improving the quality of the patents it issues.

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