Patent Progress
rom the beginning, Q. Todd Dickinson knew that replacing Bruce Lehman as Patent and Trademark Office commissioner wasn't going to be easy. Lehman, who headed PTO from 1993 to 1998, is widely credited with boosting the agency's profile, expanding its role in forming the Clinton administration's intellectual property policy, and seeing PTO through the government downsizing of the early 1990s. But it wasn't Lehman's successes that had Dickinson worried. More critical for him would be the legacy Lehman had left unfinished: his ambitious plan to overhaul the PTO and free it from government personnel and procurement regulations.
Looking back a year after stepping down, Lehman acknowledges that by the end he wasn't capable of building the support he needed for agency reform. Indeed, Lehman's proposal to set up the PTO as a quasi-governmental corporation died on Capitol Hill year after year, despite the strong backing of Vice President Al Gore and bipartisan support in Congress. Lehman's problems with the Patent Office Professional Association (POPA), the union representing patent examiners, and with independent inventors-key agency constituents who file 15 percent of all patent applications-were almost entirely to blame. "I was pretty beat up by the end," Lehman says. "I'd been demonized by the union and by the independent inventors. I think my departure at least helped to take away that element of it."
Whether Lehman's departure was decisive or not, change is coming to the Patent Office. The final fiscal 2000 omnibus appropriations bill passed by Congress in late November and signed by President Clinton included language overhauling PTO's operations. According to combatants on all sides of the issue, a good deal of credit for the legislative victory goes to Dickinson.
Indeed, since taking over for Lehman in January 1999, Dickinson has focused on patching up relations with POPA and the disgruntled inventors. At the same time, he never backed away from Lehman's core vision for agency reform.
A Lehman recruit who joined PTO in December 1997 as deputy assistant secretary and deputy commissioner of patents and trademarks, Dickinson agreed with his old boss on the overhaul's merits. In the 1990s, applications for patents have spiraled upward by 50 percent, he notes, making it increasingly difficult for the agency to provide timely examinations. The PTO is doubling its patent examining corps to 4,000, but budgetary pressures in the early 1990s slowed its responsiveness. As a result, the amount of time the typical patent applicant waits before receiving an up or down decision has grown from 19.5 months to 23.8 months since Lehman first took office. Meanwhile, cycle time, a new measure that tracks only the time in which an application is in the hands of a PTO examiner, is now 16.9 months for the average application. The agency would like to reduce that to 12 months by 2003. The new legislation, which frees the PTO from various bureaucratic regulations, will help it meet that goal, Dickinson says.
January of last year was a key turning point in the legislative fight. That month, the newly minted commissioner brought all interested parties together to discuss the reform proposal. "I was concerned about the tone of the debate, the divisiveness of the rhetoric and the fact that constituents of the office were both extremely antagonistic towards each other and towards the office," he says. The meeting itself went a long way toward getting the legislation moving again. "There was a lot of venting at first, but [the meeting] went all day and eventually people stopped talking past each other and started talking to each other," he recalls. The January meeting was "crucial," agrees Rep. Dana Rohrabacher, R-Calif., who was one of the main opponents of the legislation in previous Congresses. Rohrabacher supported the bill last year.
By August, when the House of Representatives had passed its version of the bill, POPA president Ronald Stern no longer opposed it and was openly enthusiastic about several provisions.
Freedom From Rules
That situation was a striking change from the Lehman era. In late 1998, Stern told Government Executive that Lehman and the union were "unable to agree on anything." The end of Lehman's tenure marked "probably the worst period of union-management relations" in the history of the agency, says Stephen Browning, PTO's acting deputy associate commissioner for administration.
Still, as approved, the PTO reform bill implements most of the key changes Lehman had backed. Most significantly, the PTO will be freed from federal procurement regulations, a huge boost for an agency that spends more than $150 million per year on computer systems upgrades. In the past, whenever the agency planned a purchase in excess of $100,000, it had "to go through a very complex, tedious documentation process" and ended up with contracts "three-quarters of an inch to an inch thick," explains Browning. He estimates that freedom from procurement rules will reduce purchase delays by 60 percent. That means new technology will be on employees' desks faster, adds Robert M. Anderson, deputy assistant commissioner for the PTO's trademark division. "Right now, we're about a year behind the technology, and that hurts us."
At least theoretically, the legislation also will provide the PTO with more funding for facility upgrades, salaries and other expenses. Today the agency is funded entirely by fees paid by patent and trademark applicants, but more than $100 million of the agency's income is routinely skimmed off to pay for unrelated government programs. In fiscal 1999, Congress earmarked $116 million in PTO fees for other expenditures. Under the legislation, Congress can still spend PTO fees on non-PTO programs, but it will have to reimburse the agency at a later date. While the change is an improvement, Browning says, "the fear is that it will become an uncollectible IOU."
The legislation also reorganizes the top management positions at the agency. While the PTO commissioner still will be appointed by the President, the No. 2 and No. 3 positions within the agency, the directors of the patent and the trademark divisions, will be filled by the Secretary of Commerce. The two will sign performance-based contracts that could yield large salary bonuses if predetermined goals are met. Lehman, who openly feuded with his two top deputies, is a strong backer of the changes. He argues that the top jobs should be filled by skilled managers, but Presidents typically appoint patent attorneys. "The assistant secretary for patents is running an organization that has over 3,000 employees and a half-a-billion-dollar-a-year budget," he says. "It's a management job, and we're getting patent lawyers who may have supervised their secretary and a couple of associates."
Anderson, a career civil servant, sees another problem with the old leadership structure. "First, as you get near the end of an administration's term, people start bailing out," he says. "And then you can't get anyone to fill those jobs." But under the legislation, the directors will receive five-year contracts, allowing them to remain in their posts even if there is a change in a presidential administration. They won't be "subject to all the political vagaries," Anderson says.
The legislation does not provide as much in the way of general personnel flexibilities as PTO managers had sought. While the agency will no longer be subject to government hiring freezes, the bill does little to address PTO's perpetual problem of high turnover among patent examiners. After three or four years of experience, examiners easily find higher salaries at patent law firms or at companies that rely on the patent office, Dickinson says. Excluding retirements, the agency has lost 14 percent of its employees to other organizations over the last three years.
Lehman had sought to remove PTO from the civil service umbrella in order to be able to use a wider variety of techniques to attract and retain employees. Patent examiners, however, lobbied successfully to remain within the service. Stern argues that because examiners have "quasi-judicial" powers to grant or deny valuable intellectual property rights, they need the job protections that civil servants enjoy.
As a result, Dickinson is planning, with the Office of Personnel Management and POPA, a demonstration program allowing more flexibility in personnel management. The plan could include the use of pay bands, which group General Schedule grades together and permit more rapid movement up the pay scale. Legislative authority for demonstration programs already exists, but OPM approval takes about 18 months, according to Browning.
Progress on Partnership
Compromise on the civil service issue and cooperation on the pay experiment mark a new approach to leadership at PTO, according to Stern. He and Dickinson "have been working hard to establish an honorable working relationship," Stern says, and the new commissioner "has made a positive difference." Among other initiatives, Dickinson launched a new labor-management partnership council in September. The council will allow top executives at the PTO and representatives of POPA and the PTO's unions for trademark attorneys and clerical workers to meet regularly. The unions also have non-voting seats on a new PTO advisory board established by the legislation.
The unions and Dickinson also have made progress on nagging issues, such as automating the patent examining process, training examiners, and dealing with PTO's proposed move from the Crystal City section of Arlington, Va., to nearby Alexandria.
Patent examiners have objected to management's goal of eliminating all paper files by 2003. They argue that new computerized search tools, which allow examiners to review patent files electronically, aren't yet sophisticated enough to replace all the traditional paper-in-file searches. Dickinson now says paper files will be maintained until he is certain that computer searches are equally efficient for every type of patent examination.
Dickinson has also taken steps to ease patent examiners' concerns about training. According to senior examiner Kathy Matecki, agency training and mentoring efforts have fallen off markedly in recent years due to increased workloads and the sudden expansion of the examining corps. "When I started here, I spent a couple hours a day with a senior person," she says. "Now if I can spend a couple hours a week with some of the new examiners, that's good." Already, the agency has revamped the curriculum at its patent academy, where new recruits are trained, to include more hands-on exercises.
Dickinson has boosted the number of supervisors in the agency, to maintain a ratio of one for every 13 examiners. PTO is also experimenting with allowing senior examiners to reduce their own production goals in order to spend more time mentoring. And as another incentive for examiners to stay on board, Dickinson has reinstituted a tuition-reimbursement program for after-hours technical training and graduate work in law or engineering.
Nonetheless, old union problems continue to fester. For example, Stern and the union's executive committee have parted ways with a number of examiners who continue to blast management. The dissidents, including several examiners who've served as POPA lobbyists on the legislation, have contacted Reps. William Clay, D-Mo., and William F. Goodling, R-Pa., with a list of concerns ranging from contracting abuses to racism in hiring and promotions. Stern's newfound enthusiasm for PTO management, the dissidents allege, is a result of Dickinson's strong-arm tactics. Clay and Goodling have both requested General Accounting Office investigations. None of the union dissidents agreed to be interviewed for this article.
Customer Critics
Meanwhile, relations between PTO and some of the agency's customers, particularly independent inventors, remain tense. A 1998 survey of agency patrons found that only 50 percent of patent applicants and 63 percent of trademark applicants were pleased with PTO's service.
"One of the constant questions is, 'Are we doing what our customer base wants us to?'" says Anderson, the deputy assistant commissioner for trademarks. As a result, PTO managers strongly backed the provision in the legislation setting up an advisory board consisting of representatives from major corporations, independent inventors and the agency's unions. The board, Anderson says, "should cut down a bit on the adversarial nature of the relationship [with customers] we have now." Because the exclusive rights provided by a patent or trademark are valuable commodities, the PTO is often the focus of criticism from companies or inventors who feel they've been slighted, Anderson says. The board will give the agency's customers a greater understanding of its operations and a greater say in how it does business.
Including independent inventors on the proposed board won over some longtime critics. Dropping an initial proposal to remove the agency from the Commerce Department brought others aboard, according to Dickinson. Major corporations have long backed PTO reform, but independents have opposed it, fearing Lehman's initial proposal to remove the PTO from Commerce would hinder congressional oversight and open the PTO to undue corporate influence. Under the recently passed legislation, the PTO will remain part of Commerce.
Many independents also appreciate Dickinson's creation of an Office of Independent Inventor Programs to help inventors understand the patent application process. The office is also tackling the growing problem
of invention promotion fraud, working with the Federal Trade Commission to crack down on companies that promise to help market independent inventors' ideas but often swindle them instead.
Getting patent legislation passed, though, Dickinson says, is certainly his greatest accomplishment to date. When the PTO reforms go into effect March 29, the agency will join the Education Department's Office of Student Financial Assistance as the only agencies to become "performance-based organizations," a term coined by Vice President Al Gore's reinventing government team. When it comes to accepting credit, however, Dickinson quickly demurs. "A number of people made efforts to get this done. I was just pleased to be a part of helping to make it happen."
Shawn Zeller is an assistant editor at National Journal.