Patent examiners misrepresenting their work hours

In my last post, I discussed a recent study that suggested that time constraints cause patent examiners to grant more patents, particularly by decreasing the rate for time-intensive tests like obviousness. On a related note, the patent office recently released an investigative report on patent examiners which alleges systemic abuse of work hours.

The report names four abuses. Summarized, they are:

1. Time fraud: misrepresentations of time and attendance
2. End-loading: sudden increase in productivity/work at end of the quarter
3. Mortgaging of work: claiming work before actually done
4. Performance plan issues

A Washington Post article reports:

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...More than 70 percent of the 80 managers interviewed also told investigators that a "significant" number of examiners did not work for long periods, then rushed to get their reviews done at the end of each quarter...[this] practice "negatively affects" the quality of the work.

Patent examiners, unlike most federal employees, are allowed to work from home, even full-time. I think work flexibility is good, but not at the cost of abuse of course.

In my last post the study suggested that time-constrained higher-ranking examiners performed worse at obviousness rejections. This report of abuse could demonstrate another problem. With end-loading abuse, is there a sudden rush to grant patents at the end of the quarter? If the application backlog was shorter, would it be beneficial to time my application for less scrutiny?

Could this abuse lead to "stupid patents" being granted or inconsistent examinations that are unfair to patent applicants? With the high cost of patent litigation and risk, and concerns over the quality of granted patents, abuse should be taken seriously.

From the report:

...approximately 20 percent of examiners (roughly 1,600 examiners) completed 50 percent or more of their total annual balanced disposals in the last two pay periods (or four weeks) of the quarter (typically six or seven bi-weeks), and approximately five percent of examiners (roughly 450 examiners) completed 70 percent or more of their total balanced disposals in the last two pay periods of the quarter.

End-loading work will create a quality control problem. It only takes one granted "stupid patent" to fall into the hands of a troll to impose large economic and legal costs. According to a Boston University study, the lost U.S. capital attributable to patent trolling was $29 billion in 2011.

I have sympathy for patent examiners, however. They have a difficult job that requires both tedious work and intellectual judgment. It's not their fault that courts change interpretations of patent-eligible subject matter, for example with software patents. It's unfair to use them as a scapegoat for patent abuses that reform (through laws or court precedent) could solve.