United States Government Accountability Office

GAO Report to the Ranking Member, 

Committee on Oversight and 

Government Reform, House of 

Representatives 

U.S. PATENT AND 

TRADEMARK OFFICE

Hiring Efforts Are Not 

Sufficient to Reduce 

the Patent Application 

Backlog 

September 2007 

 

GAO-07-1102 
What GAO Found

United States Government Accountability Office

Why GAO Did This Study

Highlights

Accountability Integrity Reliability

September 2007

U.S. PATENT AND TRADEMARK OFFICE

Hiring Efforts Are Not Sufficient to 

Highlights of GAO-07-1102, a report to the Reduce the Patent Application Backlog 

Ranking Member, Committee on 

Oversight and Government Reform, 

House of Representatives

Increases in the volume and 

complexity of patent applications 

have lengthened the amount of

time it takes the U.S. Patent and

Trademark Office (USPTO) to 

process them. In addition, 

concerns have continued about

USPTO’s efforts to hire and retain

an adequate patent examination 

workforce that can not only meet 

the demand for patents but also

help reduce the growing backlog of

unexamined patent applications. In 

this context, GAO was asked to

determine for the last 5 years (1) 

USPTO’s process for identifying its 

annual hiring estimates and the 

relationship of these estimates to

the patent application backlog; (2) 

the extent to which patent

examiner hiring has been offset by

attrition, and the factors that may 

contribute to this attrition; and (3) 

the extent to which USPTO’s 

retention efforts align with patent 

examiners’ reasons for staying with 

the agency. For this review, GAO 

surveyed 1,420 patent examiners, 

and received an 80 percent

response rate. 

What GAO Recommends

GAO recommends that USPTO 

undertake a comprehensive 

evaluation of the assumptions that

the agency uses to establish its 

production goals. USPTO generally 

agreed with this recommendation. 

In each of the last 5 years, USPTO primarily identified its projected annual 

hiring estimates on the basis of available funding levels and its institutional 

capacity to support additional staff and not on the existing backlog or the 

expected patent application workload. USPTO’s process for identifying its 

annual hiring estimates is generally consistent with accepted workforce 

planning strategies. Each year the agency determines how many new patent 

examiners it has the budget and supervisory and training capacity to hire. 

However, because this approach does not take into account how many 

examiners are needed to reduce the existing patent application backlog or 

address the inflow of new applications, it is unlikely that the agency will be

able to reduce the growing backlog simply through its hiring efforts. 

Although USPTO is hiring as many new patent examiners as its budget and 

institutional capacity will support, attrition is offsetting hiring progress, and 

agency management and patent examiners disagree about the causes for 

attrition. From 2002 through 2006, one patent examiner left USPTO for 

nearly every two the agency hired. This represents a significant loss to the 

agency because 70 percent of those who left had been at the agency for less

than 5 years and new patent examiners are primarily responsible for the 

actions that remove applications from the backlog. According to USPTO 

management, patent examiners leave the agency primarily for personal 

reasons, such as the job not being a good fit or family reasons. In contrast, 

67 percent of patent examiners identified the agency’s production goals as 

one of the primary reasons examiners may choose to leave USPTO. These 

production goals are based on the number of applications patent examiners 

must complete biweekly and have not been adjusted to reflect the 

complexity of patent applications since 1976. Moreover, 70 percent of patent 

examiners reported working unpaid overtime during the past year, in order 

to meet their production goals. Such a large percentage of patent examiners 

who are working extra time to meet their production goals and would 

choose to leave the agency because of these goals may be an indication that 

the production goals do not accurately reflect the time patent examiners 

need to review applications and is undermining USPTO’s hiring efforts. 

The retention incentives and flexibilities provided by USPTO over the last 5 

years generally align with the primary reasons identified by patent

examiners for staying with the agency. Between 2002 and 2006, USPTO used

a variety of retention flexibilities such as a special pay rate, performance 

bonuses, flexible work schedules, and a telework program to encourage 

patent examiners to stay with the agency. According to USPTO management 

the most effective retention efforts were those related to compensation and 

an enhanced work environment. GAO’s survey of patent examiners indicates

that most patent examiners generally approved of USPTO’s retention efforts, 

and ranked the agency’s salary and other pay incentives as well as the

flexible work schedule among the primary reasons for staying with the 

agency. 

www.gao.gov/cgi-bin/getrpt?GAO-07-1102.

To view the full product, including the scope 

and methodology, click on the link above. 

For more information, contact Anu Mittal, 202-

512-3841, mittala@gao.gov. 
Contents 

Letter 1

Results in Brief 4

Background 6

USPTO’s Annual Hiring Estimates Are Determined by Funding and 

Institutional Capacity and Are Unlikely to Reduce the Patent

Application Backlog 9 

Attrition Has Greatly Offset Hiring over the Last 5 Years, and 

Agency Management and Patent Examiners Disagree about the 

Reasons for Attrition 13 

Retention Incentives and Flexibilities Provided over the Last 5 

Years Generally Align with the Primary Reasons Patent 

Examiners Identified for Staying at USPTO 19 

Conclusion 23

Recommendation for Executive Action 23 

Agency Comments and Our Evaluation 23 

Appendix I Objectives, Scope, and Methodology 25 

Appendix II Selected Survey Results 31 

Appendix III Comments from the Department of Commerce 36 

Appendix IV GAO Contact and Staff Acknowledgments 38 

Tables 

Table 1: Retention Incentives and Flexibilities Provided by USPTO 

by Category, and Other Retention Efforts, Fiscal Years 

2002 through 2006 20 

Table 2: Number of Bonuses and Bonus Amounts USPTO Awarded, 

and Number of Patent Examiners Participating in the 

Telework Program in Fiscal Years 2002 through 2006 21 

Table 3: Patent Examiners’ Views on Compensation-Related and 

Enhanced Work Environment Incentives and Flexibilities 

in Decreasing Order of Importance 22 

Page i GAO-07-1102 U.S. Patent and Trademark Office
Table 4: Summary of Patent Examiner Population and Survey 

Sample by Stratum 27 

Figures 

Figure 1: USPTO Patent Examiner Projected Hiring Estimates and 

Actual Number Hired, Fiscal Years 2002 through 2006 11 

Figure 2: Patent Examiner Attrition by Years of Experience, Fiscal 

Years 2002 through 2006 14 

Figure 3: Estimated and Actual First Actions Completed, Fiscal 

Years 2002 through 2006 18 

Abbreviations 

GS general schedule 

OPM Office of Personnel Management 

PALM Patent Application Locating and Monitoring 

POPA Patent Office Professional Association 

UPR utility, plant, and reissue 

USPTO U.S. Patent and Trademark Office 

This is a work of the U.S. government and is not subject to copyright protection in the 

United States. It may be reproduced and distributed in its entirety without further 

permission from GAO. However, because this work may contain copyrighted images or 

other material, permission from the copyright holder may be necessary if you wish to 

reproduce this material separately. 

Page ii GAO-07-1102 U.S. Patent and Trademark Office
United States Government Accountability Office

Washington, DC 20548 

 

September 4, 2007 

The Honorable Tom Davis 

Ranking Member 

Committee on Oversight and Government Reform 

House of Representatives 

Dear Mr. Davis: 

Protecting intellectual property rights and encouraging technological 

progress are important for ensuring the current and future 

competitiveness of the United States. The U.S. Patent and Trademark 

Office (USPTO) helps protect the nation’s competitiveness by granting 

patents for innovations ranging from new treatments for diseases, to new 

wireless technology applications, to new varieties of plants.1

 USPTO’s 

ability to keep up with the demand for patents is essential for achieving its 

mission. However, increases in both the volume and complexity of patent

applications have lengthened the amount of time it takes the agency to 

process them. As a result, the inventory of patent applications that have

not yet been reviewed, called the backlog, has been growing for over 15 

years—since fiscal year 2002 alone, the backlog has increased by nearly 73

percent to about 730,000 applications. 

Inventors submit applications to USPTO to obtain a patent for their 

inventions and the right it affords the holder to exclude others from 

making, using, or selling the patented item in the United States. USPTO is 

funded by fees collected from the public for specific activities related to 

processing applications. The spending of these fees is subject to 

provisions determined by Congress in annual appropriations acts. USPTO 

relies on a workforce of nearly 5,000 patent examiners—attorneys, 

engineers, and other scientific and technical professionals—to review and 

make decisions on patent applications. The number of these professionals 

that USPTO hires, as well as the overall size and experience of the patent

examination workforce, affects the number of applications that can be

reviewed in any given year. As part of the review process, patent 

examiners are assigned what is known as a biweekly “production goal” on 

the basis of their position in the agency and the types of patent

 1

USPTO, an agency within the Department of Commerce, consists of two organizations: 

one for patents and one for trademarks. This report focuses on the patent organization. 

Page 1 GAO-07-1102 U.S. Patent and Trademark Office
applications they are assigned to review.2

 Production goals are the number 

of specific actions and decisions that patent examiners must make about

patent applications they review during a 2-week period.3

 Patent 

examiners’ performance is assessed biweekly on their ability to meet their 

production goals; their inability to meet these goals could have an impact

on their compensation and continued employment with the agency. 

However, as we noted in 2005, the assumptions underlying the agency’s 

production goals were established over 30 years ago and have not since 

been updated. 

Since 2000, USPTO has implemented a variety of human capital 

flexibilities intended to help recruit and retain enough patent examiners 

and maintain a workforce that is sufficient to meet the demand for 

patents. These flexibilities have included the use of recruitment bonuses,

law school tuition reimbursement, and a casual dress policy. In 2005, in 

response to congressional concerns about USPTO’s efforts to attract and

retain a qualified workforce, we reported that it was too soon to determine 

the long-term success of USPTO’s recruitment and retention efforts 

because, in part, they had been inconsistently sustained during the limited

time they had been in effect, and that not all of the planned initiatives had 

been implemented.4

 However, concerns have continued because of 

increasing patent examiner attrition, especially among patent examiners 

who have been at the agency for less than 5 years, which is causing the 

 2

USPTO assigns patent applications to one of its eight technology centers for review: (1) 

Biotechnology and Organic Chemistry; (2) Chemical and Materials Engineering; (3) 

Computer Architecture, Software, and Information Security; (4) Communications; (5) 

Semiconductors, Electrical and Optical Systems and Components; (6) Transportation, 

Electronic Commerce, Construction, Agriculture, National Security and License and

Review; (7) Mechanical Engineering, Manufacturing, and Products; and (8) Designs for

Articles of Manufacture. 

3

USPTO tracks two key milestones in the patent application process to evaluate patent 

examiners’ performance. One milestone is the patent examiner’s initial action on the merits 

of the case. Most patent applications are removed from the backlog when this initial action 

is made. The other milestone is when the application is allowed, abandoned, or sent to the 

Board of Patent Appeals and Interferences. 

4

GAO, Intellectual Property: USPTO Has Made Progress in Hiring Examiners, but 

Challenges to Retention Remain, GAO-05-720 (Washington, D.C.: June 17, 2005). 

Page 2 GAO-07-1102 U.S. Patent and Trademark Office
workforce to grow at a slower rate than would be expected given the 

number of patent examiners the agency has been hiring each year.5

In this context, you asked us to determine, for the last 5 years, (1) 

USPTO’s process for identifying its annual hiring estimates and the 

relationship of these hiring estimates to the patent application backlog; (2) 

the extent to which patent examiner hiring has been offset by attrition at

USPTO, and what factors may contribute to patent examiners’ decisions to 

leave the agency; and (3) the extent to which the retention incentives and

flexibilities USPTO has implemented align with patent examiners’ reasons 

for staying with the agency. 

To determine USPTO’s process for developing annual hiring estimates and 

the relationship these estimates have to the patent application backlog, we 

interviewed agency officials and reviewed agency documents and reports 

by other organizations relating to USPTO’s workforce planning process, 

including data the agency used to identify the number of patent examiners 

it planned to hire in each of the last 5 fiscal years. We analyzed patent 

examiner and patent application data for the last 5 fiscal years, as well as 

USPTO’s projections of that data through fiscal year 2012. In addition, we

reviewed the Office of Personnel Management’s (OPM) workforce 

planning guidance and interviewed officials from OPM’s Human Capital 

Assessment and Accountability Framework Office to develop criteria to 

assess USPTO’s workforce planning process. To determine the extent to

which patent examiner hiring has been offset by attrition at USPTO over 

the last 5 years, we analyzed patent examiner workforce, hiring, and 

attrition data from this time period. To determine factors that may 

contribute to patent examiners’ decisions to leave the agency, we 

conducted a Web-based survey of a stratified random sample of 1,420 

USPTO patent examiners. Overall, we received an 80 percent response 

rate to our survey. Estimates based on this survey allow us to project our 

results to all patent examiners at USPTO with a 95 percent level of 

confidence. All percentage estimates included in this report have a 95

percent confidence interval with plus or minus 5 percentage points. To 

 5

USPTO includes patent examiners who transfer or are promoted out of the patent 

examination workforce to another position within the agency in its attrition count, in 

addition to those patent examiners who leave the agency. This report uses USPTO’s

inclusive definition of attrition in order to be consistent with the agency’s projections used 

in this report, and therefore will be different from USPTO attrition data as reported by the

Office of Personnel Management, which does not include intra-agency transfers or 

promotions as part of attrition.

Page 3 GAO-07-1102 U.S. Patent and Trademark Office
address this objective, we had to rely on the views of current patent 

examiners because USPTO does not maintain contact information for 

patent examiners that have left the agency and we could not identify any 

organizations that maintain this information for USPTO staff. In addition, 

we interviewed USPTO officials, representatives of the patent examiner 

union—the Patent Office Professional Association (POPA)—and an 

official from the American Intellectual Property Law Association. To 

determine the extent to which the retention incentives and flexibilities 

provided by USPTO align with patent examiners’ reasons for staying with 

the agency, we interviewed USPTO officials about the retention incentives 

and flexibilities they have used in the past 5 years, reviewed our previous 

report on USPTO’s recruitment and retention efforts, interviewed 

representatives from POPA and an official from the American Intellectual 

Property Law Association to obtain their perspectives on factors affecting 

patent examiner retention and workload, and used the Web-based survey 

described above to obtain patent examiners’ views on USPTO’s retention 

incentives and flexibilities. Specifically, we sought patent examiners’ 

views on the reasons they would choose to stay at the agency. Appendix I 

contains a more detailed discussion of our scope and methodology. We 

conducted our work from August 2006 through July 2007 in accordance 

with generally accepted government auditing standards. 

In each of the last 5 years, USPTO has identified its annual hiring estimates 

on the basis of the agency’s funding levels and institutional capacity to 

support additional staff and not on the existing backlog or the expected 

patent application workload. Because of its increasing workload relative 

to its existing workforce, over the last 5 years, USPTO has had to hire 

additional patent examiners each year. The primary factors that 

determined USPTO’s annual hiring estimates during this time have been 

the agency’s annual funding levels and its capacity to train and supervise 

new patent examiners. About 18 months before the start of the hiring year, 

USPTO considers these factors to determine its projected hiring estimates 

for the coming year. During these 18 months, the agency refines these 

estimates on the basis of its most current budget and patent examination 

workforce data to determine the number of patent examiners the agency

can actually hire. In each of the last 5 years, for various reasons, the 

number of patent examiners the agency actually hired differed from the 

hiring estimate that the agency had originally projected. For example, the 

projected hiring estimate for fiscal year 2004 was 750 patent examiners, 

but the agency actually hired 443 because of subsequent funding 

limitations. USPTO’s current process is consistent with workforce 

planning strategies endorsed by OPM, though it is a significant deviation

Results in Brief 

Page 4 GAO-07-1102 U.S. Patent and Trademark Office
from the agency’s previous workforce planning strategy, which was more 

directly linked to the patent examination workload. Over the last 5 years 

the agency has moved away from its prior strategy because it realized that 

it did not have the institutional capacity to train and supervise the 

relatively large number of new patent examiners it would need to hire 

annually to keep pace with the increasing number of incoming patent 

applications expected each year. Although shifting to its current approach 

has enabled USPTO to better match its hiring estimates to its institutional 

training and supervisory capacity, this approach does not take into 

account how many patent examiners are needed to reduce the backlog of

existing patent applications or address the expected inflow of new 

applications. Consequently, the patent application backlog has continued 

to increase, and it is unlikely that the agency will be able to reduce the 

backlog simply through its hiring efforts. 

From 2002 through 2006, patent examiner attrition has continued to 

significantly offset USPTO’s hiring progress. Although USPTO is hiring as 

many new patent examiners as it has the annual capacity to supervise and 

train, for nearly every two patent examiners it has hired over the last 5 

years at least one has left the agency. Specifically, USPTO hired 3,672 

patent examiners between 2002 and 2006, and 1,643 patent examiners left 

the agency during this time. More importantly, of those who left, 70 

percent had been at USPTO for less than 5 years. This is a significant loss 

to the agency because, according to USPTO officials, new patent 

examiners are primarily responsible for making the initial decisions on 

applications, which removes them from the backlog. We found that within 

the agency there is significant disagreement about why patent examiners 

are continuing to leave. According to USPTO management, patent 

examiners leave primarily for personal reasons—for example, because the

job is not a good fit for them or they need to relocate because of a spouse’s 

job. In contrast, patent examiners, and the union officials who represent 

them, identified unrealistic agency production goals, which were 

established 30 years ago, as one of the primary reasons patent examiners 

may choose to leave. For example, union officials told us that attrition can 

primarily be attributed to the insufficient amount of time provided to 

patent examiners to meet their production goals. This was supported by 

our survey of patent examiners, in which 67 percent indicated that the 

agency’s production goals were among the primary reasons they would 

consider leaving USPTO. Moreover, to meet their production goals, the 

majority of patent examiners had to work substantial unpaid overtime in 

the last 12 months, while many others worked while on annual leave. 

According to one of our survey respondents, “vacation time means catch

up time.” Such a large percentage of patent examiners working extra time 

Page 5 GAO-07-1102 U.S. Patent and Trademark Office
to meet their production goals, is an indication that USPTO’s production 

goals may no longer accurately reflect the time patent examiners need to

review applications. Given the high rate of attrition that may result, in part, 

from such outdated production goals, we are recommending that USPTO 

undertake a comprehensive evaluation of how it establishes these goals 

and revise these goals as appropriate. 

The retention incentives and flexibilities that USPTO has provided over 

the last 5 years generally align with the primary reasons patent examiners 

identified for staying at the agency. USPTO management told us that their 

most effective retention efforts have been those that provide additional 

compensation to and an enhanced work environment for patent 

examiners. Specifically, USPTO officials identified the agency’s special pay 

rates, which can be more than 25 percent above federal salaries for 

comparable positions; the agency’s bonus structure, which allows patent 

examiners to earn various cash awards for exceeding production goals; 

and opportunities for patent examiners to work either part-time or fulltime from remote locations as being the most effective retention measures 

for the agency. For example, in fiscal year 2006, USPTO awarded 4,645 

bonuses to patent examiners totaling over $10.6 million; patent examiners 

may receive up to three different types of bonuses in a fiscal year. That

same year, approximately 20 percent of patent examiners participated in

the agency’s telework program, which allows patent examiners to work 

some or all of their time from an off-site location, and approximately 10 

percent of patent examiners were enrolled in the hoteling program, 

through which USPTO provides equipment to those patent examiners who 

are approved to work full-time from an off-site location. According to our 

survey, most patent examiners generally identified these types of retention 

incentives and flexibilities as among the most important reasons to stay at 

the agency. For example, 58 percent of patent examiners identified salary, 

and 49 percent flexible work schedules, as the primary reasons for staying 

with the agency. 

In its written comments on a draft of our report (reprinted in app. II), the 

Department of Commerce agreed with our findings, conclusions, and 

recommendation. In addition, the agency provided technical comments 

that we have incorporated as appropriate. 

To obtain a patent, inventors—or more usually their attorneys or agents—

submit an application to USPTO that fully discloses and clearly describes 

one or more distinct innovative features of the proposed invention and pay 

a filing fee to begin the examination process. Patent examiners review 

Background 

Page 6 GAO-07-1102 U.S. Patent and Trademark Office
these applications to determine if a patent is warranted. In making this 

determination, patent examiners must meet two specific milestones in the 

patent examination process: first actions and disposals. 

• First action. Patent examiners notify applicants about the patentability 

of their invention through what is called a first action. After 

determining if the invention is new and useful, or a new and useful 

improvement on an existing process or machine, patentability is 

determined through a thorough investigation of information related to 

the subject matter of the patent application and already available 

before the date the application was submitted, called prior art. Prior art 

includes, but is not limited to, publications and U.S. and international 

patents. 

• Disposal. Patent examiners dispose of a patent application by

determining, among other things, if a patent will be granted—called 

allowance—or not. 

Patent examiners receive credit, called counts, for each first action and

disposal, and are assigned production goals (also known as quotas) on the 

basis of the number of production units—composed of two counts—they 

are expected to achieve in a 2-week period. The counts in a production 

unit may be any combination of first actions and disposals. 

The production goals that are used to measure patent examiner 

performance are based on the same assumptions that USPTO established 

in the 1970s. At that time, the agency set production goals in the belief 

that it should take a patent examiner a certain amount of time to review a 

patent application and achieve two counts based on the patent examiner’s 

experience (as determined by the patent examiner’s position in the 

agency) and the type of patent application reviewed. As a result, these 

goals vary depending upon the patent examiner’s position in the federal

government’s general schedule (GS) pay scale and the technology center 

in which the patent examiner works.6

 For example, a GS-12 patent 

examiner working on data processing applications is expected to achieve 

two counts in 31.6 hours, whereas a GS-12 patent examiner working on 

plastic molding applications is expected to do so in 20.1 hours. In contrast, 

GS-7 patent examiners working on these two types of applications are 

expected to achieve two counts in 45.1 and 28.7 hours, respectively. 

 6

Technology centers specialize in specific areas of science and engineering.

Page 7 GAO-07-1102 U.S. Patent and Trademark Office
Patent examiner achievements are recorded biweekly, and, at the end of 

each fiscal year, those patent applications that have not been reviewed for 

first action are counted as part of USPTO’s inventory of unexamined 

applications, otherwise known as the patent application backlog. In 2002, 

we reported that the patent application backlog had increased by nearly

250 percent from 1990 to 2001, and that USPTO had projected that the 

inventory would increase to between 393,000 and 512,000 in fiscal year 

2002.

7

 In addition, we reported that the agency had made three 

significantly different predictions about the future of the backlog in three 

separate reports that were based on different assumptions: 

• In its Fiscal Year 2002 Corporate Plan, in 2001, USPTO projected that 

the backlog would increase to almost 1.3 million by the end of fiscal 

year 2006. 

• In USPTO’s Business Plan, in 2002, the agency projected that the 

backlog would increase to about 584,000 through fiscal year 2007. 

• In the 21st Century Strategic Plan, in 2002, USPTO projected that the 

backlog would decrease to about 144,000 through fiscal year 2007.8

In 2005, we also reported on USPTO’s efforts and challenges in attracting

and retaining a qualified patent examination workforce. Specifically, we 

reported that USPTO faced human capital challenges because, among 

other things, it had not established an effective mechanism for managers 

to communicate and collaborate with patent examiners, and managers and 

patent examiners had differing opinions on the need to update the 

monetary award system that is based on assumptions of the time it takes 

to review a patent application that were established in 1976. We 

recommended that USPTO develop formal strategies to improve 

communication and collaboration among management, patent examiners, 

and the union to resolve key issues identified in the report, such as the 

assumptions underlying the quota system. In response to that 

recommendation, USPTO conducted an internal survey on 

communication, and is working to develop a communication strategy on 

 7

GAO, Intellectual Property: Information on the U.S. Patent and Trademark Office’s Past

and Future Operations, GAO-02-907 (Washington, D.C.: Aug. 23, 2002). 

8

USPTO’s Corporate Plan was submitted with the fiscal year 2002 budget. USPTO’s 

Business Plan was the agency’s first 5-year strategic plan. It was replaced by the 21st 

Century Strategic Plan after a new Director decided the Business Plan did not go far

enough. 

Page 8 GAO-07-1102 U.S. Patent and Trademark Office
the basis of the results. However, the agency has not addressed the issues

we identified relating to the assumptions underlying the quota system. 

Over the last 5 years, as a result of its increasing workload relative to its 

existing workforce, USPTO determined that it would need to hire 

additional patent examiners each year. However, the agency identified its 

annual hiring estimates primarily on the basis of available funding levels 

and its institutional capacity to train and supervise new patent examiners, 

and not on the basis of the number of patent examiners needed to reduce 

the existing backlog or review new patent applications. While the process 

USPTO uses to identify its annual hiring estimates is consistent with 

OPM’s workforce planning strategies and has enabled the agency to better 

match its hiring estimates to its institutional capacity, it is unlikely that the 

agency will be able to reduce the patent application backlog simply 

through its hiring efforts. 

According to USPTO, during the last 5 years, the agency has used its 

available funding levels and its capacity to supervise and train patent 

examiners as the primary factors for identifying its projected annual hiring

estimates. Specifically, USPTO begins the process of identifying projected 

hiring estimates as part of creating its budget submission for the Office of 

Management and Budget (OMB) 18 months before the start of the hiring 

year in order to meet OMB’s budget submission timeline. As part of this 

process, the agency considers expected funding levels and patent 

examiner workforce data that are available at that time.9

 On the basis of 

these data, USPTO next considers its institutional capacity to supervise 

and train patent examiners. For example, in identifying its fiscal year 2002 

hiring estimate, USPTO determined that funding availability would limit 

the number of patent examiners the agency would be able to hire, and 

used the number of patent examiners it had hired in the most recent year

as a guide for its projected hiring estimate. However, in fiscal years 2003 

through 2006, USPTO determined that funding levels would not be a 

limiting factor for hiring, and therefore established its hiring estimates 

USPTO’s Annual 

Hiring Estimates Are 

Determined by 

Funding and 

Institutional Capacity 

and Are Unlikely to 

Reduce the Patent 

Application Backlog 

USPTO’s Funding Levels 

and Supervisory and 

Training Capacity 

Determine Its Annual 

Hiring Estimates 

 9

In commenting on a draft of this report, USPTO stated that it uses a robust forecasting and 

modeling process to determine the optimal hiring, staffing, and production levels. This 

model was evaluated by the National Academy of Public Administration and determined to 

be appropriate. While we acknowledge that USPTO uses this model to identify optimal 

hiring levels, we found that the determination of projected estimates was made on the basis 

of funding levels and the capacity to support additional staff. 

Page 9 GAO-07-1102 U.S. Patent and Trademark Office
primarily based on its institutional capacity to supervise and train patent 

examiners. 

In determining its institutional capacity to supervise and train new patent 

examiners, USPTO considers a number of factors. For example, the 

agency estimates its supervisory capacity by determining how many 

additional patent examiners can be placed in each of the technology 

centers. This number is limited by the number of supervisors available in 

each center who can sign patent application approvals and rejections and 

provide on-the-job training for new patent examiners. Although new 

patent examiners can review the prior art relating to a patent application,

only supervisors can authorize a new patent examiner’s decision to 

approve or reject a patent application.

10 Therefore, the agency tries to 

ensure that the patent-examiner–to-supervisor ratio is about 1 supervisor 

for every 12 patent examiners; otherwise it could result in delays and 

inefficiencies in making initial and final decisions on patent applications. 

Similarly, USPTO’s training capacity is determined by the number of 

patent examiners the agency believes it can train in a year. Before fiscal 

year 2006, training capacity was determined by how many patent 

examiners could be accommodated in the required training courses 

offered by the agency to new patent examiners. This training consisted of 

2- or 3-week courses that were offered throughout the year and were led 

by supervisory patent examiners. The courses could accommodate about

16 patent examiners each, and in fiscal year 2004, according to USPTO, the 

agency offered about 28 training sessions. 

Because USPTO’s projected hiring estimates are established at least 18

months in advance of the hiring year, USPTO continues to refine them to 

reflect changes that might occur during the 18-month period. For 

example, in 2002 USPTO established a projected hiring estimate of 750 

patent examiners for fiscal year 2004 when it created its budget 

submission for OMB. However, USPTO actually hired 443 patent 

examiners in fiscal year 2004 because of budget constraints that had to be

considered after its original estimates had been developed. Figure 1 

shows USPTO’s projected and actual hiring numbers for fiscal years 2002 

through 2006.

 10We are including both supervisory patent examiners and primary examiners as

supervisors for the purpose of this report. 

Page 10 GAO-07-1102 U.S. Patent and Trademark Office
Figure 1: USPTO Patent Examiner Projected Hiring Estimates and Actual Number 

Hired, Fiscal Years 2002 through 2006 

0

200

400

600

800

1,000

1,200

1,400

2002 2003 2004 2005 2006

Patent examiners

Source: USPTO.

Fiscal year

Patent examiner hiring estimates

Patent examiners hired

The reasons for the differences between projected hiring estimates and the

number of patent examiners hired in fiscal years 2002 through 2006 were 

primarily related to funding availability. In fiscal years 2003 and 2004, 

according to USPTO, the agency’s appropriations were significantly less 

than the agency’s budget requests. As a result, the agency could not 

financially support the number of new patent examiners it had initially 

planned to hire. Conversely, in fiscal years 2005 and 2006, USPTO hired 

more patent examiners than originally planned because the agency 

received greater funding for those years than originally anticipated. 

The way in which USPTO identifies annual patent examiner hiring 

estimates is generally consistent with workforce planning strategies 

endorsed by OPM. OPM has identified key elements that agencies should 

consider when planning to hire additional personnel, and OPM officials 

told us that these key elements are well recognized throughout the field of 

workforce planning. For example, OPM recommends that agencies 

regularly track workforce trends to ensure updated models for meeting 

Page 11 GAO-07-1102 U.S. Patent and Trademark Office
organizational needs, base decisions on sources of information such as 

past workforce data, and include in its workforce planning process a 

workforce analysis system that identifies current and future losses due to 

attrition. We found that in identifying its hiring estimates, USPTO generally 

applies these principles because it makes decisions on the basis of trends 

in hiring, attrition, and total workforce data from recent years, and 

identifies current losses due to attrition when identifying its annual hiring 

estimates and estimates of attrition for the hiring year. 

Although consistent with OPM’s workforce strategies, USPTO’s current 

approach is significantly different from the approach that the agency used

prior to fiscal year 2002. At that time, the number of patent examiners 

USPTO wanted to hire was based on the number of patent applications the 

agency expected to receive in the hiring year, as well as on the anticipated 

patent application backlog at the beginning of the hiring year. According 

to USPTO officials, since fiscal year 2002, the agency has moved away 

from this approach because it realized that it could no longer supervise 

and train enough patent examiners to keep up with the increasing 

workload. 

However, USPTO recognizes that it needs to increase its institutional 

capacity to hire more patent examiners, and in this regard is taking steps

to increase its training and supervisory capacity. For example, to increase 

its training capacity, USPTO implemented an 8-month training program in 

fiscal year 2006 called the Patent Training Academy that will provide the 

agency a constant annual training capacity of 1,200 new patent examiners 

for each of the next 5 years. USPTO also believes that the academy may 

indirectly improve the agency’s supervisory capacity because it will better 

prepare new patent examiners to start work in a technology center, and 

therefore they will need less supervision and on-the-job training. USPTO 

plans to monitor new patent examiners after they have graduated from the 

academy in order to determine if the agency can further use this approach

to increase its institutional capacity and, therefore, its future annual hiring

estimates. 

Even with its increased hiring estimates of 1,200 patent examiners each 

year for the next 5 years, USPTO’s patent application backlog will 

continue to grow, and is expected to increase to over 1.3 million at the end 

of fiscal year 2011. According to USPTO estimates, even if the agency 

were able to hire 2,000 patent examiners per year in fiscal year 2007 and 

each of the next 5 years, the backlog would continue to increase by about

260,000 applications to 953,643 at the end of fiscal year 2011. The agency 

has acknowledged that it cannot hire its way out of the backlog despite its 

Page 12 GAO-07-1102 U.S. Patent and Trademark Office
recent increases in hiring, and is now focused on slowing the growth of 

the backlog instead of reducing it. 

Although USPTO is hiring as many new patent examiners as it has the 

annual funding and institutional capacity to support, increasing attrition 

among patent examiners has resulted in the loss of one patent examiner 

for nearly every two hired over the last 5 years. While agency officials 

cited personal reasons for patent examiner attrition, patent examiners 

disagreed and cited the agency’s outdated production goals as one of the 

primary reasons they would choose to leave the agency. 

Although USPTO hired 3,672 patent examiners from the beginning of fiscal 

year 2002 through fiscal year 2006, the patent examination workforce 

increased by only 1,644 because 2,028 patent examiners either left the 

agency or moved to other positions. More specifically, during this time, 

1,643 patent examiners left the agency, and 385 patent examiners were 

either transferred or promoted out of the position of patent examiner. As 

shown in figure 2, of the 1,643 patent examiners who left the agency, 

approximately 70 percent had been at USPTO for less than 5 years, and 

nearly 33 percent had been at USPTO for less than 1 year.11 

Attrition Has Greatly 

Offset Hiring over the 

Last 5 Years, and 

Agency Management 

and Patent Examiners 

Disagree about the 

Reasons for Attrition 

Over the Last 5 Years, One 

Patent Examiner Has Left 

USPTO for Nearly Every 

Two Hired 

 11These percentages include patent examiners who transferred or were promoted out of the 

patent examination workforce, but remained at USPTO, and represent approximately 19 

percent of patent examiner attrition from fiscal year 2002 through 2006. 

Page 13 GAO-07-1102 U.S. Patent and Trademark Office
Figure 2: Patent Examiner Attrition by Years of Experience, Fiscal Years 2002 

through 2006 

0

50

100

150

200

250

300

350

400

2002 2003 2004 2005 2006

Patent examiners

Source: USPTO.

Fiscal year

Patent examiners at USPTO for less than 1 year

Patent examiners at USPTO for less than 5 years

Patent examiners at USPTO for 5 years or more

Note: In each fiscal year, the number of patent examiners at USPTO for less than 5 years is inclusive

of those at USPTO for less than 1 year. 

The attrition of patent examiners who were at the agency for less than 5 

years is a significant loss for USPTO for a variety of reasons. First, 

because these less experienced patent examiners are primarily responsible 

for making the initial decision on patent applications, which is the 

triggering event that removes applications from the backlog, attrition of 

these staff affects USPTO’s ability to reduce the patent application 

backlog. Second, because patent examiners require 4 to 6 years of on-thejob experience before they become fully proficient in conducting patent 

application reviews, when these staff leave USPTO the agency loses as 

much as 5 years of training investment in them. Third, the continuous 

churning of so many new patent examiners makes the overall workforce 

less experienced. As a result, the more experienced patent examiners who 

have the ability to examine more applications in less time have to instead 

devote more of their time to supervising and training the less experienced

Page 14 GAO-07-1102 U.S. Patent and Trademark Office
staff, thereby further reducing the overall productivity of the agency. 

Finally, these workforce losses affect the agency’s supervisory capacity,

because they reduce the pool of potential supervisory patent examiners 

for the future and therefore negatively affect USPTO’s ability to increase 

its capacity and ultimately its hiring goals. 

USPTO Management Links 

Attrition to Employees’ 

Personal Reasons, while 

Patent Examiners Link It 

to the Agency’s Production 

Goals 

We found that USPTO management and patent examiners disagree 

significantly on the reasons for the attrition that is occurring at the agency. 

According to USPTO management, personal reasons are the primary 

reasons that cause patent examiners to leave the agency.

 12 Some of these 

reasons include the following: 

• The nature of the work at USPTO does not fit with the preferred 

working styles of some patent examiners such as those with 

engineering degrees who are looking for more “hands-on” experiences. 

• Many patent examiners enter the workforce directly out of college and 

are looking to add USPTO to their résumés and move on to another job 

elsewhere rather than build a career at the agency, otherwise known as 

the “millennial problem.” 

• Patent examiners may choose to leave the area, as opposed to choosing 

to leave the agency, because their spouse transfers to a position 

outside of the Washington, D.C., area; the cost of living is too high; or 

the competition is too high for entry into the Washington, D.C., area 

graduate and postgraduate programs for those patent examiners who 

would like to pursue higher education. 

USPTO management told us that the agency is taking steps to help address 

these issues through efforts such as developing a recruitment tool to 

better assess applicant compatibility with the agency’s work environment; 

targeting midcareer professionals during the recruitment process; and 

considering the creation of offices located outside the Washington, D.C., 

area that would provide lower cost-of-living alternatives for employees. 

While union officials agreed that in some cases personal reasons, such as 

the high cost of living in the Washington, D.C., area, may lead to attrition 

 12The term “primary reasons” in this report refers to the top three reasons patent examiners

leave the agency provided by USPTO management, as well as the top three or more

statistically significant reasons provided by patent examiners in our survey.

Page 15 GAO-07-1102 U.S. Patent and Trademark Office
among patent examiners, they believe that attrition at USPTO can be 

primarily attributed to the unrealistic production goals that the agency sets

for patent examiners.13 Specifically, union officials explained that the 

production goals do not allow adequate time for patent examiners to do 

their work, especially in light of the increased scrutiny and quality 

initiatives implemented by management. They told us that the production 

goals have created a “sweat shop culture” within the agency that requires 

patent examiners to do more in less time and has therefore been a 

significant contributor to patent examiners’ decisions to leave USPTO. To 

emphasize this concern, the union joined the Staff Union of the European 

Patent Office and other international patent examiner organizations in 

April 2007 to sign a letter declaring that the pressures on patent examiners 

around the world have reached such a level that in the absence of serious 

measures, intellectual property worldwide would be at risk. The letter 

recommended, among other things, an increase in the time patent 

examiners have to review patent applications. 

According to our survey of patent examiners, 67 percent, regardless of 

their tenure with the agency, agree with union officials that the agency’s 

production goals are among the primary reasons they would consider 

leaving USPTO. Moreover, we estimated that 62 percent of patent 

examiners are very dissatisfied or generally dissatisfied with the time 

allotted by USPTO to achieve their production goals. According to our 

survey, 50 percent of patent examiners are also very dissatisfied or 

generally dissatisfied with the way in which the agency’s production goals 

are calculated, and a number of respondents noted that the production 

goals are outdated, have not changed in 30 years, and some technologies 

for which they evaluate applications had not even been discovered at the 

time the agency’s production goals were set. When asked for suggestions 

on how to improve the production system, 59 percent of patent examiners 

felt that the system needs to be reevaluated, including altering the 

production goals to allow more time for patent examiners to conduct their 

reviews. 

 13Union officials also identified a recent decision by USPTO management to track when 

patent examiners enter and leave the building as another reason why patent examiners 

would choose to leave the agency. Union officials declined to rank the reasons they

believe patent examiners leave USPTO, preferring instead that we rely on patent examiner

survey results. 

Page 16 GAO-07-1102 U.S. Patent and Trademark Office
USPTO employees who participated in OPM’s 2006 Federal Human Capital 

Survey reported similar results.14 Specifically, 89 percent of the 

respondents, comprising both patent examiners and 

managerial/supervisory employees, reported that they believe the work 

they do is important.15 However, respondents were almost evenly split on

whether their workload was reasonable, with 41 percent considering their 

workload reasonable and 40 percent considering it unreasonable. 

We and others have noted in the past that the assumptions the agency uses 

to calculate patent examiner production goals were established in the 

1970s and have not since been adjusted to reflect changes in science and 

technology. Moreover, the agency uses these production goals to establish 

its overall performance goals, such as the number of first actions to be 

completed in a given year.16 However, the agency has missed its 

projections for first actions completed in 4 of the last 5 years, as shown in 

figure 3, which further suggests that these goals may be unrealistic. 

 14OPM’s Federal Human Capital Survey is a tool that measures employees’ perceptions of

whether, and to what extent, conditions that characterize successful organizations are 

present in their agencies. 

15USPTO respondents to the Federal Human Capital Survey included employees from both

the patent organization, which accounts for about 76 percent of the agency’s resources, and 

the trademark organization. 

16USPTO predicts first actions by multiplying the number of patent examiners in the

workforce by production goals.

Page 17 GAO-07-1102 U.S. Patent and Trademark Office
Figure 3: Estimated and Actual First Actions Completed, Fiscal Years 2002 through

2006 

First actions

Source: USPTO.

Fiscal year

Estimated first actions

Actual first actions

200,000

220,000

240,000

260,000

280,000

300,000

320,000

340,000

360,000

380,000

400,000

2002 2003 2004 2005 2006

Furthermore, according to our survey, patent examiners are discontented 

with the actions they have to take in order to meet their production goals. 

According to our survey, during the last year, 70 percent of patent 

examiners worked unpaid overtime to meet their production goals, some 

more than 30 extra hours in a 2-week period. The percentage of patent

examiners who worked unpaid overtime increased with the length of 

tenure they had with the agency. We estimated that while 46 percent of 

patent examiners who had been at USPTO from 2 to 12 months had to 

work unpaid overtime to meet their production goals; 79 percent of patent

examiners with over 5 years’ experience at the agency had to put in unpaid 

overtime. In addition, we estimated that 42 percent of patent examiners 

had to work to meet production goals while on paid annual leave during 

the past year. The percentage of patent examiners working while on paid

leave also was significantly higher for those with a longer tenure at the 

agency. We estimated that 18 percent of patent examiners who had been

at USPTO from 2 to 12 months worked to meet their production goals 

while on paid leave, and 50 percent of patent examiners with over 5 years’

experience at the agency had to work to meet production goals while on 

annual leave. As one respondent to our survey explained, “Vacation time 

Page 18 GAO-07-1102 U.S. Patent and Trademark Office
means catch up time.” Another respondent summed up the situation as 

follows: “I know that the production goals are set to keep us motivated in

order to help get over the backlog but if a majority of examiners cannot 

meet those goals without relying on unpaid overtime or annual leave then 

something is wrong with the system.” We estimated that because of the 

amount of unpaid overtime that they have to put into meeting their 

production goals, 59 percent of patent examiners consider it one of the 

primary reasons they would choose to leave USPTO, and 37 percent 

identified the amount of time they must work during paid leave to meet 

their production goals among the primary reasons they would leave the 

agency. 

This extensive amount of unpaid overtime does not appear to be a concern 

to USPTO management, even though the agency has not been able to meet

its productivity goals for the last 4 years. When we queried USPTO 

management about the agency’s policy regarding patent examiners 

working unpaid overtime to meet their production goals, the Deputy 

Commissioner for Patent Operations told us, “As with many professionals 

who occasionally remain at work longer to make up for time during the 

day spent chatting or because they were less productive than intended, 

examiners may stay at the office (or remote location) longer than their 

scheduled tour of duty to work.” 

From 2002 to 2006, USPTO offered a number of different retention 

incentives and flexibilities in three main areas to improve the retention of 

patent examiners, as shown in table 1.17

Retention Incentives 

and Flexibilities 

Provided over the 

Last 5 Years Generally 

Align with the 

Primary Reasons 

Patent Examiners 

Identified for Staying 

at USPTO 

 17GAO reported on key practices for effective use of human capital flexibilities in GAO, 

Human Capital: Effective Use of Flexibilities Can Assist Agencies in Managing Their 

Workforces, GAO-03-2 (Washington, D.C.: Dec. 6, 2002). 

Page 19 GAO-07-1102 U.S. Patent and Trademark Office
Table 1: Retention Incentives and Flexibilities Provided by USPTO by Category, and Other Retention Efforts, Fiscal Years 

2002 through 2006

Category Retention incentive, flexibility, or other

• Performance bonuses 

• Flexible spending accounts that allow patent examiners to set aside funds for 

expenses related to health care and care for dependents 

• Law school tuition reimbursement programa

• Noncompetitive promotion to the full performance level 

• Recruitment bonuses of up to $9,900 

• Special pay rateb

Compensation

• Transit subsidy program 

• Casual dress policy 

• Flexible work schedules, including the ability to schedule hours off during the day 

• Improved management communication techniques (e.g., town hall meetings, online 

chats with the Commissioner)

• No-cost health screenings at an on-site health unit staffed with a registered nurse and 

part-time physician 

• On-site child care and fitness centers 

• Creation of a committee to organize recreational and social activities, such as a 

basketball tournament and Halloween party

Enhanced work environment

• Work at home opportunities 

• Additional training for managers, such as workshops on intergenerational issues and 

technical training for patent examiners 

• Formation of a Patents Retention Council to focus on patent examiner retention issues 

at USPTO 

Other retention efforts 

• A survey given to potential applicants during the recruiting process to better assess 

applicant compatibility with the USPTO work environment 

Source: GAO analysis of USPTO information.

a

USPTO provided the law school tuition program for 2 years between fiscal years 2002 and 2006. 

b

The special pay rate was approved in 2006 and went into effect in January 2007. 

According to USPTO management officials, the three most effective 

retention incentives and flexibilities that they have offered are the special

pay rates, the bonus structure, and opportunities to work from remote 

locations. 

• Special pay rate. In November 2006, USPTO received approval for an 

across-the-board special pay rate for patent examiners that can be 

more than 25 percent above federal salaries for comparable positions. 

For example, in 2007, a patent examiner at USPTO earning $47,610

Page 20 GAO-07-1102 U.S. Patent and Trademark Office
would earn $37,640 in a similar position at another federal agency in

the Washington, D.C., area. 

• Bonus structure. The agency awards bonuses at the end of each fiscal 

year to patent examiners who exceed their production goals by at least 

10 percent. For example, according to USPTO, 60 percent of eligible 

patent examiners who exceeded production goals by 10 percent or 

more received a bonus in fiscal year 2006. As table 2 shows, USPTO 

awarded 4,645 bonuses totaling over $10.6 million to patent examiners 

in fiscal year 2006.18

• Opportunities to work from remote locations. In fiscal year 2006, 

approximately 20 percent of patent examiners participated in the 

agency’s telework program, which allows patent examiners to conduct 

some or all of their work away from their official duty station 1 or more 

days per week. In addition, when USPTO began a hoteling program in 

fiscal year 2006, approximately 10 percent of patent examiners 

participated in the program, which allows some patent examiners to 

work from an alternative location.19

Table 2: Number of Bonuses and Bonus Amounts USPTO Awarded, and Number of

Patent Examiners Participating in the Telework Program in Fiscal Years 2002 

through 2006 

2002 2003 2004 2005 2006

Number of bonusesa 4,877 4,839 5,015 4,567 4,645

Bonus amount (dollars in 

millions) 

$10.3 $10.9 $11.5 $10.9 $10.6

Patent examiners in telework 

program

Not applicableb

800 345 1014 999

Source: USPTO. 

a

Up to three types of bonuses may be awarded to one patent examiner in a fiscal year, one of which 

may be awarded twice per fiscal year. 

b

USPTO did not offer a telework program in fiscal year 2002. 

 18USPTO may award up to three types of bonuses to one patent examiner in a fiscal year. 

19Patent examiners who qualify for hoteling are assigned USPTO computer hardware and 

are not assigned permanent office space but share space when it is necessary for them to

come into the USPTO offices. 

Page 21 GAO-07-1102 U.S. Patent and Trademark Office
According to the results of our survey, patent examiners generally 

identified compensation-related retention incentives and USPTO’s efforts 

to enhance the work environment as among the most important reasons 

for staying with the agency. (See app. II for more detailed information on 

the questions included in and the results of our survey.) Specifically, as 

table 3 shows, patent examiners ranked current total pay, flexible work 

schedules, the hoteling program, and federal benefits as among the 

primary reasons they would choose to stay at USPTO. Similarly, 51 and 87 

percent of the USPTO employees who participated in OPM’s 2006 Federal 

Human Capital Survey reported that they were satisfied with their pay and

alternative work schedules, respectively. 

Table 3: Patent Examiners’ Views on Compensation-Related and Enhanced Work Environment Incentives and Flexibilities in

Decreasing Order of Importance 

USPTO incentives and flexibilities offered to patent examiners 

Estimated percentage of patent examiners who

identified these incentives and flexibilities as 

reasons to stay with the agency

Current total pay (excluding benefits) 58

The availability of the flexible work schedule program 49

The availability of a hoteling program 38

Current federal benefits 30

The availability of a teleworking program 17

The recent implementation of a special pay rate increase 16

Opportunities for career advancement 15

The ability to be promoted to the next GS level 14

The availability of the law school tuition program 10

The availability of monetary awards 5

The casual dress policy 4

Access to an on-site fitness center 4

The availability of a transit subsidy program 2

The availability of on-site child care 1

The availability of flexible spending accounts (i.e., the program that allows 

you to pay for eligible out-of-pocket health care and dependent care 

expenses with pretax dollars) 1

The availability of an on-site health unit 0

Activities offered by the Work-Life Committee 0

Source: GAO survey. 

Note: To determine the estimated percentages in this table, we included the total number of times 

patent examiners identified a particular retention incentive and flexibility as one of the three most

important reasons they would choose to stay at USPTO. 

Page 22 GAO-07-1102 U.S. Patent and Trademark Office
Despite its efforts to hire an increasing number of patent examiners 

annually and implement a number of retention incentives and flexibilities 

over the last 5 years, USPTO has had limited success in retaining new 

patent examiners. While many of the measures implemented generally

align with the primary reasons that patent examiners would stay with the 

agency, these efforts have not been enough to prevent the agency from 

losing one patent examiner for nearly every two that it has hired, and 

especially troubling is the high loss of patent examiners who have been 

with the agency for less than 5 years. Although USPTO management does 

not agree, the root of this high level of attrition appears to be the stress 

resulting from the agency’s outdated production goals. To meet the 

agency’s production goals, most patent examiners, regardless of their 

tenure with the agency, have had to work unpaid overtime or work during 

paid leave time, and therefore consider this to be a primary reason for 

leaving USPTO. Because the production goals appear to be undermining 

USPTO’s efforts to hire and retain a highly qualified workforce, we believe 

the agency will continue to be limited in its ability to meet the increasing 

demand for U.S. patents and reduce the growth of the patent application 

backlog, and ultimately may be unable to fulfill its mission of ensuring U.S. 

competitiveness. 

We recommend that the Secretary of Commerce direct the Under 

Secretary of Commerce for Intellectual Property and Director of the U.S. 

Patent and Trademark Office to undertake a comprehensive evaluation of 

the assumptions that the agency uses to establish patent examiner 

production goals and revise those assumptions as appropriate. 

We provided a draft of this report to the Department of Commerce and 

USPTO for review and comment. In its comments, the Department of 

Commerce agreed with our findings, conclusions, and recommendation 

and agreed that the agency's hiring efforts are not sufficient to reduce the 

patent application backlog. In light of this issue, the Department of 

Commerce stated that USPTO is implementing various initiatives designed 

to increase the productivity of the agency that will result in a more 

efficient and focused patent examination process. Once USPTO 

determines the effect of these initiatives on patent examiner productivity, 

it will reevaluate the assumptions used to establish patent examiner 

production goals. The agency also provided technical comments that we 

have incorporated as appropriate. The Department of Commerce's letter 

is included in appendix II. 

Conclusion 

Recommendation for 

Executive Action 

Agency Comments 

and Our Evaluation 

Page 23 GAO-07-1102 U.S. Patent and Trademark Office
As agreed with your office, unless you publicly announce the contents of

this report earlier, we plan no further distribution until 30 days from the 

report date. At that time, we will send copies to interested congressional 

committees and Members of Congress and the Secretary of Commerce. We 

also will make copies available to others upon request. In addition, the 

report will be available at no charge on the GAO Web site at 

http://www.gao.gov. 

If you or your staff have questions about this report, please contact me at

(202) 512-3841 or mittala@gao.gov. Contact points for our Offices of 

Congressional Relations and Public Affairs may be found on the last page 

of this report. GAO staff who made key contributions to this report are 

listed in appendix IV. 

Sincerely yours, 

Ms. Anu K. Mittal 

Director, Natural Resources 

 and Environment 

Page 24 GAO-07-1102 U.S. Patent and Trademark Office
Appendix I: Objectives, Scope, and Appendix I: Objectives, Scope, and Methodology 

Methodology 

To determine the U.S. Patent and Trademark’s (USPTO) process for 

developing annual hiring estimates and the relationship these estimates 

have to the patent application backlog, we analyzed patent examiner data 

that USPTO extracts from the National Finance Center, and patent 

application data from the agency’s Patent Application Locating and 

Monitoring (PALM) system,1

 from fiscal years 2002 through 2006, and

projections of that data through fiscal year 2012.

2

 Specifically, these data 

included actual end of fiscal year numbers from 2002 through 2006 and 

estimates from fiscal years 2002 through 2012 for patent examination 

workforce, patent examiners hired, patent examiners lost to attrition, first 

actions, received patent applications, and the patent application backlog. 

USPTO provided the majority of these data to us in the form of USPTO’s 

fiscal years 2002 through 2008 Budget Requests of the President of the 

United States. The budget requests for fiscal years 2003 through 2005 

contained the hiring estimates for each of those years as well as those 

projected for an additional 4 years, and the actual number of patent 

examiners hired for fiscal years 2002 and 2003.3

 USPTO provided the 

remaining estimates in an interview, and the remaining actual numbers 

hired by extracting that information from the National Finance Center into

Excel documents. 

We assessed the reliability of the patent examiner data USPTO extracted 

from the National Finance Center and the agency’s PALM system and 

determined that they were acceptable for our purposes. We assessed the 

reliability of patent examiner data by comparing the data to patent 

examiner data in the Central Personnel Data File. To assess the reliability 

of the PALM system, we interviewed the Acting Director of the Office of 

Patent Audit and Evaluation. We also interviewed USPTO’s Administrator 

of the Office of Patent Resources Administration to gain an understanding 

of the process through which USPTO identifies hiring estimates and the 

role of the backlog in that process. In addition, we reviewed reports by 

other organizations, such as the National Academy of Public

Administration, relating to USPTO’s workforce planning process. We 

 1

 PALM is an internal USPTO system that contains current patent application status 

information. 

2

USPTO officials explained that the agency does not store patent examiner data on site, but 

relies on access to the National Finance Center to obtain that information when necessary. 

3

According to USPTO, the data requirements for the budget requests can change and 

USPTO provides the required data to the Office of Management and Budget accordingly. As

a result, not all of the information we requested was available in these documents. 

Page 25 GAO-07-1102 U.S. Patent and Trademark Office
Appendix I: Objectives, Scope, and 

Methodology 

reviewed the Office of Personnel Management’s (OPM) workforce 

planning guidance and interviewed officials from OPM’s Human Capital 

Assessment and Accountability Framework Office to develop criteria to 

assess USPTO’s workforce planning process. We compared USPTO’s 

process for developing annual hiring estimates to OPM’s workforce 

planning strategies and other best practice information we received from

OPM’s Human Capital Assessment and Accountability Framework Office 

in order to determine if USPTO’s process for identifying annual hiring 

estimates was consistent with OPM’s recommended workforce planning 

strategies. 

To determine the extent to which hiring patent examiners has been offset 

by attrition at USPTO over the last 5 years, we analyzed patent examiner 

workforce, hiring, and attrition data from this time period as described 

above. In addition, USPTO provided attrition data by years of experience 

for each of those years in separate documents derived from the National

Finance Center. Specifically, we compared the total number of patent 

examiners hired in each of the last 5 years to the total workforce growth 

and the total patent examiner attrition in that time. To determine the 

factors that may contribute to patent examiners’ decisions to leave the 

agency, we conducted a Web-based survey of a stratified random sample 

of 1,420 current patent examiners.4

 To address this objective, we had to 

rely on the views of current patent examiners because USPTO does not 

maintain contact information for patent examiners that have left the 

agency, and we could not identify any organizations that maintain this 

information for USPTO staff. Through the survey instrument, we gathered

patent examiners’ views on satisfaction with various aspects of working at 

USPTO, the time worked to meet production goals, and reasons they 

would choose to stay with or leave the agency. In addition, we asked for 

their views on ways to improve the production system. 

The target population for our sample consists of patent examiners who 

were employed by USPTO as of November 22, 2006, and were still 

employed as of the survey closing date, February 28, 2007. We selected

 4

While we also surveyed supervisory patent examiners, we did not include their responses

in our analysis and estimates because we determined during the course of our review that 

they perform a very different function than nonsupervisory patent examiners. 

Consequently supervisory patent examiners have different job-related concerns and 

different reasons than nonsupervisory patent examiners for choosing to stay with or leave 

USPTO. Because our report focuses on why staff performing the patent examiner function 

stay with or leave the agency, we focused only on the responses of nonsupervisory patent 

examiners. 

Page 26 GAO-07-1102 U.S. Patent and Trademark Office
Appendix I: Objectives, Scope, and 

Methodology 

our sample from a study population composed of all USPTO patent 

examiners as of November 22, 2006, and we asked agency officials to 

provide the names, e-mail addresses, and length of time at USPTO for 

patent examiners at the agency on that date. Patent examiners who were

hired after November 22, 2006, are not represented in our sample. 

Similarly, patent examiners who left or retired from the agency between 

November 22, 2006, and February 28, 2007, might be sampled but would 

not be a part of our target population (and therefore are considered out of

the scope of our survey). From that list, we selected a random sample of 

patent examiners,5

 stratified by the length of time they would have been at

the agency at the beginning of the survey period in late January 2007.6

 Our 

sample consisted of 1,420 patent examiners, and we obtained complete 

survey responses from 1,129 of them, for an overall response rate of about 

80 percent. Table 4 summarizes population size, sample size, and 

disposition of sample cases for each of these strata. 

Table 4: Summary of Patent Examiner Population and Survey Sample by Stratum 

StratumaPopulation Sample Respondents

Out of

scopea

Response 

rate

1. Patent examiners: 

2-12 months 1,007 430 342 0 80%

2. Patent examiners: 

1-5 years 1,506 480 385 0 80%

3. Patent examiners: 

5+ years 2,305 510 402 8 80%

Total 4,818 1,420 1,129 8 80%

Source: GAO.

a

From the initial notification, we identified 8 sampled individuals who were outside the target 

population. Individuals were determined to be outside the target population for reasons such as they 

performed a function other than patent examination or they had since left the agency. 

All sample surveys are subject to sampling error—that is, the extent to 

which the survey results differ from what would have been obtained if the 

whole population had been observed. Each patent examiner in the study 

population has a known nonzero probability of being selected, and the 

 5

We defined patent examiners as those responsible for reviewing utility, plant, and reissue 

(UPR) patent applications. 

6

For example, a person newly hired at the time the population frame was created in late

November 2006 would have been at the agency 2 months by late January 2007. This is why 

the shortest tenure displayed in table 4 is 2 months. 

Page 27 GAO-07-1102 U.S. Patent and Trademark Office
Appendix I: Objectives, Scope, and 

Methodology 

data for each respondent are appropriately weighted to account 

statistically for all patent examiners in that stratum, including those that 

were not selected. Because we followed a probability procedure based on 

random selections, our sample is only one of a large number of samples 

that we might have drawn. Since each sample could have provided 

different estimates, we expressed our confidence in the precision of our 

particular sample’s results as a 95 percent confidence interval. This is the 

interval that would contain the actual population value for 95 percent of 

the samples we could have drawn. As a result, we are 95 percent 

confident that each of the confidence intervals based on the survey 

includes the true values in the sample population. Estimates based on this 

survey allow us to project our results to all patent examiners at USPTO 

with a 95 percent level of confidence. All percentage estimates in this 

report have a 95 percent confidence interval within plus or minus 5 

percentage points of the estimate itself. For example, our survey 

estimates that 42 percent of patent examiners worked while on annual 

leave during the past year, and we are 95 percent confident that the actual

proportion of patent examiners working while on leave during this period

is within 5 percentage points of 42, i.e., between 37 and 47 percent. All 

reported comparisons of patent examiner groups for a particular survey 

question are statistically significant with a probability of 0.05. 

In addition to the reported sampling errors, as previously indicated, the 

practical difficulties of conducting any survey may introduce errors, 

commonly referred to as nonsampling errors. For example, differences in

how a particular question is interpreted, the information sources available 

to respondents, or the types of sample members who do not respond can

introduce unwanted variability into the survey results. Our estimation 

method assumes that nonrespondents are missing at random. If 

characteristics of respondents are different from those of nonrespondents 

on key items, it could introduce a bias not accounted for in our analysis. 

We took extensive steps in questionnaire development, data collection, 

and the editing and analysis of the survey data to minimize nonsampling 

errors. For example, the survey was developed by a GAO survey specialist 

in conjunction with subject matter experts, and then reviewed by a second

independent survey specialist. In addition, we pretested the survey with 

patent examiners. During these pretests, we asked the patent examiners 

to complete the survey as they would when they received it. We then 

interviewed the respondents to ensure that (1) the questions were clear 

and unambiguous, (2) the terms used were precise, (3) the survey did not 

place an undue burden on the patent examiners completing it, and (4) the 

survey was independent and unbiased. We also provided a copy of the 

survey to USPTO officials and representatives from the patent examiner 

Page 28 GAO-07-1102 U.S. Patent and Trademark Office
Appendix I: Objectives, Scope, and 

Methodology 

union—the Patent Office Professional Association (POPA)—to gain their 

thoughts on the four previously mentioned criteria. On the basis of the 

feedback from the pretests and our discussions with agency officials and 

union representatives, we revised the questions, as appropriate. 

Additionally, the statistical programs that produced our survey estimates, 

including estimates of categories derived from content analysis, were 

reviewed by a second independent programmer to ensure accuracy in the 

logic and syntax of the program. Finally, to ensure security and data 

integrity, we provided all participants with a user name and a personal 

password that allowed them to access and complete the survey. No one 

else could access that survey or edit its data. To reduce survey 

nonresponse, we sent out e-mail reminder messages to encourage them to

complete the survey. We activated the survey and informed respondents 

of its availability on January 25, 2007, and allowed respondents access to 

the survey through February 28, 2007. 

We conducted a computer-enabled content analysis to analyze a key openended survey question soliciting respondents’ suggestions for 

improvements to the production system. Two reviewers collaboratively 

developed content categories based on survey responses, and then 

independently assessed and coded each survey response into those 

categories. In cases where disagreements among the two reviewers 

regarding the coding of responses into content categories were found, all

disagreements were resolved through reviewer discussion. Ultimately, 

there was 100 percent agreement between the reviewers. 

In addition to the survey mentioned above, we spoke with USPTO 

officials, representatives from POPA, and an official from the American 

Intellectual Property Law Association, a national bar association of 

lawyers involved in fields of law affecting intellectual property, to gain 

their perspectives on why patent examiners leave the agency. 

To determine the extent to which the retention incentives and flexibilities 

that USPTO provides align with patent examiners’ reasons for staying with 

the agency, we spoke with USPTO officials, union representatives, and an

official from the American Intellectual Property Law Association to gain 

their perspectives on the effectiveness of the retention incentives and 

flexibilities at USPTO. We also analyzed USPTO policies and information 

regarding the agency’s retention incentives and flexibilities. In addition, 

we used the Web-based survey described above to obtain patent 

examiners’ views on the reasons they would choose to stay at the agency. 

Page 29 GAO-07-1102 U.S. Patent and Trademark Office
Appendix I: Objectives, Scope, and 

Methodology 

We conducted our work from August 2006 through July 2007 in 

accordance with generally accepted government auditing standards. 

Page 30 GAO-07-1102 U.S. Patent and Trademark Office
Appendix II: Selected Survey

Appendix II: Selected Survey Results Results 

The following tables contain summary results of selected questions from 

our survey of patent examiners at USPTO. For each question reported 

below, the estimated percentage is presented. All percentage estimates 

have a 95 percent confidence interval within plus or minus 5 percentage

points of the estimate itself. These tables do not include summaryestimate data for the demographic questions and do not include the results 

from any open-ended questions. 

Q6. Over the past 12 months, on average, about how much 

voluntary/uncompensated overtime have you worked per biweek to meet your

production goal? 

Number of hours 

Estimated 

percentage

Less than 1 hour 5

1-10 hours 62

11-20 hours 23

21-30 hours 5

More than 30 hours 5

Source: GAO survey. 

Note: Respondents to this question had self-identified in a previous question as having worked 

voluntary/uncompensated overtime to meet their production goals. 

Q8. Over the past 12 months, on average, about how much annual leave have you 

used per quarter to meet your production goal? 

Number of hours 

Estimated 

percentage

Less than 1 hour 2

1-10 hours 47

11-20 hours 29

21-30 hours 12

More than 30 hours 10

Source: GAO survey. 

Note: Respondents to this question had self-identified in a previous question as having used annual 

leave to meet their production goals. 

Page 31 GAO-07-1102 U.S. Patent and Trademark Office
Appendix II: Selected Survey

Results 

Q10a. How important, if at all, are each of the following factors as reasons for you to stay with USPTO? 

Very important or important reason to stay 

Reason

Estimated 

percentage

a. Your current total pay (excluding benefits) 77

b. Your current federal benefits 77

c. The availability of monetary awards 45

d. The recent implementation of a special pay rate increase 80

e. The caliber of your current supervision 58

f. The extent to which resources, such as mentors, are available to answer your questions 44

g. Your opportunities for career advancement 59

h. Your ability to be promoted to the next GS level 67

i. The extent to which this job fits your work style 71

j. Your production goals 17

k. The amount of paid leave that you must use to meet production goals 10

l. The amount of voluntary/uncompensated overtime that you must work to meet production goals 9

m. The amount of review of your work (i.e., for quality purposes) 14

n. Activities offered by the Work-Life Committee (e.g., 4 on 4 basketball tournament, trip to Atlantic City, but NOT activities

run by the PTO Society or your Technology and/or Art Center) 11

o. The availability of the law school tuition program 43

p. The availability of a hoteling program (i.e., the opportunity for examiners to work full-time from an off-site location) 79

q. The availability of a teleworking program (i.e., the opportunity for examiners to work some hours from an off-site location) 77

r. The availability of the flexible work schedule program 94

s. The availability of flexible spending accounts (i.e., the program that allows you to pay for eligible out-of-pocket health care

and dependent care expenses with pretax dollars) 42

t. The availability of a transit subsidy program 58

u. The availability of an on-site health unit 37

v. The casual dress policy 55

w. The availability of on-site child care 26

x. Access to an on-site fitness center 47

y. Other—Please specify below 34

Source: GAO survey. 

Page 32 GAO-07-1102 U.S. Patent and Trademark Office
Appendix II: Selected Survey

Results 

Q10b. How important, if at all, are each of the following factors as reasons for you to leave USPTO? 

Very important or important reason to leave 

Reason

Estimated 

percentage

a. Your current total pay (excluding benefits) 8

b. Your current federal benefits 3

c. The availability of monetary awards 8

d. The recent implementation of a special pay rate increase 0

e. The caliber of your current supervision 11

f. The extent to which resources, such as mentors, are available to answer your questions 12

g. Your opportunities for career advancement 14

h. Your ability to be promoted to the next GS level 9

i. The extent to which this job fits your work style 10

j. Your production goals 52

k. The amount of paid leave that you must use to meet production goals 49

l. The amount of voluntary/uncompensated overtime that you must work to meet production goals 61

m. The amount of review of your work (i.e., for quality purposes) 27

n. Activities offered by the Work-Life Committee (e.g., 4 on 4 basketball tournament, trip to Atlantic City, but NOT activities

run by the PTO Society or your Technology and/or Art Center) 2

o. The availability of the law school tuition program 1

p. The availability of a hoteling program (i.e., the opportunity for examiners to work full-time from an off-site location) 0

q. The availability of a teleworking program (i.e., the opportunity for examiners to work some hours from an off-site location) 0

r. The availability of the flexible work schedule program 0

s. The availability of flexible spending accounts (i.e., the program that allows you to pay for eligible out-of-pocket health care

and dependent care expenses with pretax dollars) 0

t. The availability of a transit subsidy program 1

u. The availability of an on-site health unit 0

v. The casual dress policy 1

w. The availability of on-site child care 1

x. Access to an on-site fitness center 0

y. Other—Please specify below 39

Source: GAO survey. 

Page 33 GAO-07-1102 U.S. Patent and Trademark Office
Appendix II: Selected Survey

Results 

Q11. Looking at the list of reasons in question 10, what are the top three reasons why you would choose to stay with USPTO? 

Reason

Estimated 

percentage

a. Your current total pay (excluding benefits) 58

b. Your current federal benefits 30

c. The availability of monetary awards 5

d. The recent implementation of a special pay rate increase 16

e. The caliber of your current supervision 9

f. The extent to which resources, such as mentors, are available to answer your questions 3

g. Your opportunities for career advancement 15

h. Your ability to be promoted to the next GS level 14

i. The extent to which this job fits your work style 15

j. Your production goals 1

k. The amount of paid leave that you must use to meet production goals 0

l. The amount of voluntary/uncompensated overtime that you must work to meet production goals 0

m. The amount of review of your work (i.e., for quality purposes) 0

n. Activities offered by the Work-Life Committee (e.g., 4 on 4 basketball tournament, trip to Atlantic City, but NOT activities

run by the PTO Society or your Technology and/or Art Center) 0

o. The availability of the law school tuition program 10

p. The availability of a hoteling program (i.e., the opportunity for examiners to work full-time from an off-site location) 38

q. The availability of a teleworking program (i.e., the opportunity for examiners to work some hours from an off-site location) 17

r. The availability of the flexible work schedule program 49

s. The availability of flexible spending accounts (i.e., the program that allows you to pay for eligible out-of-pocket health care

and dependent care expenses with pretax dollars) 1

t. The availability of a transit subsidy program 2

u. The availability of an on-site health unit 0

v. The casual dress policy 4

w. The availability of on-site child care 1

x. Access to an on-site fitness center 4

y. Other—Please specify below 4

Source: GAO survey. 

Note: To determine the estimated percentages in this table, we included the total number of times 

patent examiners identified a particular retention incentive and flexibility as one of the three most

important reasons they would choose to stay at USPTO. Percentages total more than 100 percent 

because respondents selected three reasons each.

Page 34 GAO-07-1102 U.S. Patent and Trademark Office
Appendix II: Selected Survey

Results 

Q12. Looking at the list of reasons in question 10, what are the top three reasons that would cause you to consider leaving 

USPTO? 

Reason

Estimated 

percentage

a. Your current total pay (excluding benefits) 16

b. Your current federal benefits 4

c. The availability of monetary awards 6

d. The recent implementation of a special pay rate increase 1

e. The caliber of your current supervision 13

f. The extent to which resources, such as mentors, are available to answer your questions 8

g. Your opportunities for career advancement 15

h. Your ability to be promoted to the next GS level 8

i. The extent to which this job fits your work style 11

j. Your production goals 67

k. The amount of paid leave that you must use to meet production goals 37

l. The amount of voluntary/uncompensated overtime that you must work to meet production goals 59

m. The amount of review of your work (i.e., for quality purposes) 26

n. Activities offered by the Work-Life Committee (e.g., 4 on 4 basketball tournament, trip to Atlantic City, but NOT activities

run by the PTO Society or your Technology and/or Art Center) 1

o. The availability of the law school tuition program 1

p. The availability of a hoteling program (i.e., the opportunity for examiners to work full-time from an off-site location) 2

q. The availability of a teleworking program (i.e., the opportunity for examiners to work some hours from an off-site location) 1

r. The availability of the flexible work schedule program 2

s. The availability of flexible spending accounts (i.e., the program that allows you to pay for eligible out-of-pocket health care

and dependent care expenses with pretax dollars) 0

t. The availability of a transit subsidy program 0

u. The availability of an on-site health unit 0

v. The casual dress policy 1

w. The availability of on-site child care 0

x. Access to an on-site fitness center 0

y. Other—Please specify below 7

Source: GAO survey. 

Note: To determine the estimated percentages in this table, we included the total number of times 

patent examiners identified a particular retention incentive and flexibility as one of the three most

important reasons they would choose to leave USPTO. Percentages total more than 100 percent 

because respondents selected three reasons each.

Page 35 GAO-07-1102 U.S. Patent and Trademark Office
Appendix III: Comments from the Department Appendix III: Comments from the of Commerce 

Department of Commerce 

 Page 36 GAO-07-1102 U.S. Patent and Trademark Office
Appendix III: Comments from the Department 

of Commerce 

 Page 37 GAO-07-1102 U.S. Patent and Trademark Office
Appendix IV: GAO Contact and Staff 

Acknowledgments 

Anu K. Mittal, (202) 512-3841 

In addition to the contact named above, Vondalee R. Hunt (Assistant 

Director), Nancy Crothers, Nancy Hess, Stuart Kaufman, Grant Mallie, 

Rebecca Shea, Michelle K. Treistman, Lisa Vojta, and Greg Wilmoth made 

significant contributions to this report. Scott Derrick and Omari Norman 

also contributed to this report. 

Page 38 GAO-07-1102 U.S. Patent and Trademark Office

GAO Contact 

Staff 

Acknowledgments 

(360742) 
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