Patent Office Telework Abuses Raise Fear of Wider Crackdown

A House hearing Tuesday examining time-and-attendance abuses at the U.S. Patent and Trademark Office highlighted ongoing disagreement about the scope of the problem and the implications for telework governmentwide.

Agency witnesses insisted they had gotten a handle on widely reported issues, including misrepresentation of hours and rushed work by patent examiners. But the two chairmen at the joint hearing disagreed with that assessment, and an inspector general testified that an internal probe of the abuses understated the problem. The IG also noted several ongoing investigations at USPTO.

Though the Patent and Trademark Office for more than a decade has enjoyed a reputation as a model for federal telecommuting, it came under fire in August when a pair of draft internal reports were leaked to the Washington Post, suggesting that an initial report finding serious abuses had been “filtered” to make the problem seem less systemic.

The alleged abuses by some among the agency’s 8,500 patent examiners included submitting time cards overstating hours worked; “end-loading” (holding off on work until the final days of a reporting quarter and thereby harming quality); and “mortgaging,” or submitting time-card claims for work not yet completed.

House Judiciary Committee Chairman Bob Goodlatte, R-Va., said he found it disturbing last summer when “cracks began to appear in the agency’s façade.” Revelations that mid-level managers were not being permitted to investigate the alleged abuses “called into question the agency officials’ statements that the problems were isolated and not systemic,” he said.

House Oversight and Government Reform Committee Chairman Darrell Issa, R-Calif., who displayed plaques of his own 37 patents while warning of unfair treatment of inventors and entrepreneurs, said 36 percent of supervisors were denied tools to investigate whether their employees are abusing telework, and he said the watering down of internal reports “calls into question whether an agency can ever again be assigned an internal review.”

But Rep. Gerry Connolly, D-Va., praised USPTO’s progress on reducing a backlog of patents and said it has used its telecommuting program as a recruiting tool. “We are here to examine a dark cloud that threatens to overshadow and undermine much of the positive work,” he said. “ My hope is that today’s hearing will move beyond addressing symptoms related to telework, to focus on the fundamental PTO problems related to insufficient performance metrics that may be subject to gaming and managers who are stuck in an antiquated ‘if I cannot see you, you must not be working mindset.’ ” 

Retiring Rep. Frank Wolf, R-Va., appearing as a witness and calling himself “a huge advocate of telework,” was tough on the agency. He said he had “expressed displeasure” to Commerce Secretary Penny Pritzker and asked for a criminal investigation by the U.S. Attorney for the Eastern District of Virginia, “if the PTO and the Commerce Department fail to terminate those employees that abused the system.” The abuses mean “other telework programs across the government could very well be in jeopardy,” Wolf testified.

Todd Zinser, the Commerce Department inspector general whose past reports have faulted the Patent agency for other time-and attendance abuses, agreed that the internal reports had been altered “significantly” to exclude the results of interviews with disgruntled managers.

The agency’s shift from emphasizing “time and attendance” to quotas and productivity has come at a price, Zinser’s audits have shown. Investigators found that over the last four fiscal years, 15 percent to 20 percent of examiners end-loaded in any given quarter, he testified. “Unfortunately, USPTO is unable to track all of the quality errors that result from end-loading,” he said.

Commissioner for Patents Peggy Focarino said her agency was taking the charges seriously but defended the telework program’s long-term benefits. “It has allowed us to more than double the number of patent examiners since 2005 without significantly increasing our real estate footprint,” she said in prepared testimony. In fiscal 2014, “based on more than 5,000 full-time teleworkers, the USPTO avoided more than $34 million in rent as a result of its telework program.”

Under questioning, Focarino said she didn’t believe there was a major increase in misconduct, reporting that since the problem emerged, one employee has been removed, two suspended, and one given a letter of counseling. “Only two of those were telecommuting,” she added. Since 2012, the Patent Office has introduced eight remedies, and implemented 13 of 15 recommendations from an advisory panel, she said. Among them are new guidance for managers and requiring “electronic collaboration tools for full-time teleworkers to improve the accessibility and interaction between teleworking employees, their supervisors, and their on-campus colleagues.”

In October, Focarino added, the agency engaged the nonprofit National Academy of Public Administration, which has previously done work on Patent Office issues, to “provide a thorough and independent evaluation of our telework programs and to advise us on further opportunities for improvement.”

The strongest defense of the telework program came from Robert Budens, president of the Patent Office Professional Association. He challenged the Post’s reporting. News coverage, he said, “assumed that the draft 32-page report was some sort of gospel fact rather than what it was -- a draft, heavily biased collection of anecdotes and unsubstantiated allegations. That is why the draft was never sent to the IG in the first place and does not bear the signature of Fred Steckler, the USPTO’s chief administrative officer.”

Budens said it would be impossible for USPTO to examine 600,000 patent applications and issue 300,000 patents, as it did in fiscal 2014, and yet have “thousands” of examiners getting paid for work they did not do. He pointed out that patent examining does not require being physically parked in front of a computer, given that the “demanding work” also requires reading and phone calls.

The professional association “strongly disagrees with any assertion that the USPTO has some sort of systemic plague of poorly performing employees,” he said. “We do understand, however, that any organization of 12,000-plus employees, whether public sector or private sector, will have some employees who run into difficulties in the workplace.” Such problems are routinely addressed by “a series of progressive disciplinary measures coupled with opportunities for improving their performance,” he testified.

Esther Kepplinger, a private attorney and PTO veteran now vice chair of the Patent Public Advisory Committee, said the time and attendance abuses pre-dated the telework program. She said the problems are currently addressed, but counseled the agency to “be vigilant on quality.”

Attorney William F. Smith, who spent three decades at the Patent Office, proposed more requirements for face-to-face interviewing between examiners and applicants, and he suggested a new time-keeping software system that tracks time by application number.

The issue is unlikely to fade soon. Zinser said the inspector general’s office is still probing possible abuses that include:

• Reports that a trademark examiner and another USPTO employee allegedly go to their offices in the morning—and then immediately leave for other destinations, returning at the end of the day;

• An anonymous complaint that a patent examiner had run for election and stated that he was available “at all times;”

• A USPTO report that a patent examiner allegedly falsified time and attendance records for over 600 hours, amounting to a possible loss of over $24,000 to the government; and;

• An anonymous complaint that a patent examiner bragged about producing zero work products for six months, with no punishment.