Strategic Plan > Index to Action Papers > Certification of Knowledge, Skills and Ability In Patent Process to Ensure Proper Hiring, Retention, and Promotion of Patent Examiners

Certification of Knowledge, Skills and Ability In Patent Process to Ensure Proper Hiring, Retention, and Promotion of Patent Examiners

Action:

The USPTO has implemented examinations and other means to ensure that patent examiners possess the requisite knowledge, skills and abilities in selection, retention, and promotion decisions.  

Background Information:

Poor hires cost the Office a tremendous amount of time and resources.  Further, the Office of the Inspector General (IG) issued an audit report on March 29, 2002 advising the Office to improve its hiring process on two fronts: first, to better inform candidates of the work culture, i.e. productivity requirements, and second, to better identify those candidates most suited, and those not suited for the examiner position.  Instituting a carefully designed and legally defensible suitability testing program would help ensure that only compatible employees with appropriate skills, motivation and correct attitude are hired.  This process will reduce non-productive and unsuitable hires.

Currently, the Office certifies the formal training of individuals prior to employment with the Office.  No pre-employment test is performed.  Once a patent examiner is hired, the individual receives initial training.  Thereafter, on-the-job training and then more advanced training is provided.  However, patent examiners are not tested to ensure that they understand and are able to apply the training.  The patent examiner is again certified during the signatory program prior to becoming a primary examiner.  Once an individual becomes a primary examiner, there is no periodic testing/training to ensure that the individual maintains an expected level of competency in law, regulations and practice and procedures.  Subsequent training is only given as a result of changes to the patent law and/or regulatory changes.   

Portions of the patent examination process have changed significantly in recent years and are likely to continue changing.  Therefore, we need to formalize a certification program in order to ensure that all examiners keep up-to-date with the necessary skills and knowledge to perform well.

It is unlikely that a successfully performing employee will not be able to pass the recertification program.  However, in those instances where the employee does not pass initial recertification, the USPTO intends to provide refresher training opportunities, as appropriate, to return the employee to an acceptable level of job competency.  Employees demonstrating performance deficiencies will be handled no differently than at present. 

Options Considered:

Option 1:

  Enlist the Office of Personnel Management (OPM) to design a suitability test that will accurately predict which employment candidates are most likely to succeed as a patent examiner.  Implement this screening as a component of the hiring process. 

OPM staff, including a Personnel Research Psychologist, would study current, successful examiners and develop a testing tool that targets applicants with characteristics similar to successful examiners to aid the selection process, and spotlight applicants who behave in ways that potentially undermine the mission of the organization, thus eliminating them from the applicant pool. 

Key features of the assessment program:

·       Matches characteristics of successful patent examiners so that we can select employees with similar characteristics and maximize the potential for successful hiring, including considerations of those who will have successful, lengthy careers at the USPTO. 

·       Intended to reduce the prevalence of counterproductive behaviors.

·       Thoroughly backed by job analysis and extensive information gathering.

·       Objectively developed and scored using procedures that are widely accepted.

Estimated benefits:

·       Typically increases overall accuracy in choosing desired workers when used in combination with traditional means of assessing ability to do a particular job (for the Office this includes writing sample; school transcripts; resume and personal references).

·       Usually decreases the negative impact of assessment measures against minority groups.

·       Is less costly than interview, polygraph, or other procedures typically used to detect unsuitability. 

·       Is legally defensible.

·       Addresses the Agency’s need to reduce costs associated with unsuitable hires.

·       Provides a higher level of customer satisfaction based on the ability of an examiner to perform well.

·       Provides a pool of qualified and suitable applicants with the requisite skills/competency to perform duties.

·       Reduces the time needed to rate and rank candidates by providing clear and concise instructions on what characteristics a candidate must possess in order to receive additional consideration beyond the initial application level.

Option 2:

Educate employment candidates as to the skill sets required to be a successful examiner and to the production/pendency/quality environment of the Examining Corps.

Key features of better educating employment candidates:

·       Supplement recruiting literature with pronounced information on examiner performance and promotion requirements.

·       Supplement electronic media (recruiting CD, USPTO web site) with the same information.

·       Supplement recruiter training material and provide supplemental training.

Option 3:

Establish a two-year probationary period for all patent examiners through OPM.

Key features of extending the probationary period:

·       OPM must approve any extension to the probationary period.

·       A two-year period would afford the Office an opportunity to evaluate patent examiners after they have completed all initial training.  Examiners would be evaluated in a true production mode.

Estimated benefits:

·       The Office would be able to make more accurate retention decisions and therefore retain a greater percentage of successful employees.

·       The Office could release employees who were unable to sustain acceptable performance or conduct during the second year of employment – a time when problems often arise.

·       Provides new examiners additional time and incentive to perform well.

Option 4:

  Establish Training Art Units (TAUs) for new examiners in high volume hiring areas where examiners will spend their first year. 

TAUs would be designed specifically to facilitate the training of new employees.  Skilled primary examiners would be rotated through the Art Unit on one to two year details and would be asked to mentor/train/oversee a small group of newly hired examiners during their first year. 

Key features of TAUs:

·       Will require a SPE to manage the Art Unit and four primary patent examiners (trainer examiners) to train and oversee the progression of the new examiners.  This structure would allow for the training and the work product review/signature of up to 28 new examiners at a time.

·       Primary examiners would be reassigned as trainer examiners.

·       Trainer examiners would be asked to sign office actions for the 5 to 7 employees assigned to work with them, and would discuss the progress of each examiner with the SPE, including comments on performance. 

·       Trainer examiners would be expected to administer test for new examiner competencies

·       May not be effective in technology with very little hiring. 

Estimated benefits:

·       Save costs associated with the inefficiency of the current practice of using primaries to train new examiners in an Art Unit setting.

·       Save other SPEs’ time by relieving them of initial training responsibilities.

·       Consistency in training.

·       No new positions required.

·       Can be expanded and contracted based on projected hiring.

·       Good training ground for primaries to become SPEs.

·       Would reduce Introduction to Practices and Procedures (IPP) training needs in the Corps as training would be incorporated in the TAU.

·       Could adopt “bull penning” of new examiners in abandoned search rooms to both relieve space concerns and promote group training and adhesion.

Option 5:

  Develop and implement a testing process used in conjunction with the TAUs that will determine whether an examiner can be certified for their initial promotion after either six or twelve months.

As a further means of ensuring that newly hired employees possess the knowledge, skills and abilities to succeed in the Art Units, test each examiner before promoting them to the next grade and/or before they are released from the TAU. 

Key features of the test for probationary employees:

·       Establish a uniform evaluation tool that measures whether a new examiner is ready for their initial promotion and can be certified as having the potential to be successful once promoted.

·       May need to be art specific, but should test understanding of basic examining functions as outlined in the position description. 

·       May also want a separate test that would be taken by examiners depending on their grade.  For example, the test for a GS-5 should not be as rigorous as the test for a

GS-9, even though they have been in the office for the same period. 

Estimated investment:

·       Costs associated with developing the test.

·       Costs associated with training the TAU SPE on use of the test.

·       Costs associated with administering the test to each new examiner.

Estimated benefits:

·       Consistency/fairness in promotion determination process.

·       Employees will not be promoted before they possess basic skills and are prepared to perform successfully at the next grade level.

·       Can be used to identify weaknesses of the training program so that the program can be continually revised to provide the best possible training.

Option 6:

  Develop and implement an examination procedure that will determine whether an examiner is ready for promotion subsequent to the initial promotion. 

Examiners must pass a test in order to be promoted throughout the career ladder.  Although the tests would almost certainly need to be art specific, they could be used to test for the same skills at each grade level.  Would require periodic testing by way of certification and re-certification of Office employees who participate in the patent application examining process to assure a level of quality.

Key features of testing prior to promotion throughout the career ladder:

·       Successful completion of the test would be required for promotion to the next grade level.

·       Although the art would vary, would test for the same skills at each level.

·       Would require that an examiner be otherwise qualified for promotion, i.e. that they are fully successful and have demonstrated the ability to perform at the next higher level through performance before the examiner can take the test.

Estimated investment:

·       Costs associated with developing evaluation tools.

·       Costs associated with training management on use of the test.

·       Cost to train examiners so that they can stay current on job requirements.

·       Costs associated with administering the test to each new examiner.

Estimated benefits:

·       Improved quality

·       Reduced rework

·       Consistency/fairness in promotion determination process.

·       Employees will not be promoted before they are prepared to be successful at the next grade level.

 

Option 7:

Develop and implement an examination that must be successfully completed before promotion to the GS-13 level (see Transformation 10 (P-21)).

Rather than testing at all levels, the USPTO would administer a test prior to promotion to the GS-13 level. 

 

Key features of testing prior to promotion to the GS-13: 

·       Test basic, advanced and legal examination skills prior to promotion to GS-13, which entitles the examiner to a certificate of legal competency and formal negotiations authority. 

·       Skills tested would need to be applicable to the specific art of the examiner.  For example, some different legal principals apply, or are found more or less common depending on the art involved. 

·       Eliminates some of the difficulties with testing at all levels. 

 

Timing:

·       Time required to develop and validate the evaluation tool for each needed art.

Estimated benefits:

·       Builds confidence of customers before examiners work independently with only rare and cursory review of work. 

·       Ensures at least a minimal level of legal competence before Agency issues certificate. 

·       Test can include customer service component to promote effective interaction with customers as part of formal negotiation authority. 

Option 8:

  Require Technology Center Directors to review a randomly selected sample of the examiner’s work product to ensure that the examiner has demonstrated the ability to successfully perform the job at the next grade level. 

Generally, the decision to promote examiners has been left to the discretion of the SPE, with only a cursory review by the Technology Center Director.  If Directors review work prior to approving promotions, they may catch potential issues requiring further discussion, and SPEs may exercise more caution knowing that their decisions will be scrutinized more closely.  A Quality Assurance Specialist (QAS) or other management official could perform this function, but it would reduce the effectiveness unless the Director took ownership of the review.   

Key features of the review process:

·       Need for random review of work, which may be difficult at some grade levels because drafts are reviewed and changed before being placed in the file.

·       Would need some consistency, at least in each Technology Center, about standards to show sufficient skills and effort to warrant promotion. 

Estimated benefits:

·       Added check of quality before promotions.

·       Added confidence of customers.

·       Better quality of work.

·       Contributes to formation of culture of quality.

Option 9:

  Develop and implement a structured review process for all examiner promotions to GS-9 to GS-13 (excludes examiner’s first promotion). 

Examiners must pass a structured review in order to be promoted throughout the career ladder.  Although the review would almost certainly need to be art specific, they could be used to confirm the candidate’s competency for the same skills at each grade level. 

Key features of a competency review prior to promotion throughout the career ladder:

·       Successful completion of the review would be required for promotion to the next grade level.

·       Although the art varies on each examiner docket, would confirm the candidate’s competency for the same skills at each level.

·       Would require that an examiner be otherwise qualified for promotion. 

Estimated benefits:

·       Improved quality.

·       Reduced rework.

·       Consistency/fairness in promotion determination process.

·       Employees will not be promoted before they are prepared to be successful at the next grade level.

USPTO Recommended Course of Action:

1 through 5, 7, and (8 or 9) for patent examiners.

Several of the above options are currently being further studied, piloted and/or implemented.  Action to date includes:

Option 1 - Further consideration is being given to evaluating the need and potential success of such suitability screening.  With current budget constraints, this action is on hold pending reconsideration.

Option 2 - All recruiters are being provided with materials and advice on how to make clear to potential employees what the job entails, and how to conduct an assessment of these skills during the interview process.  Recruiters implemented the new procedures at the end of the fiscal year 2002 hiring phase.  These new procedures will continue to be used during the fiscal year 2003 hiring cycle.

Option 3 - This option requires Demonstration Authority and/or statutory changes.  At this point this action is on hold.

Option 4 - A pilot TAU was formed in October of 2002.  The unit is composed of 25 new examiners, 4 trainers and 1 SPE.  The TAU will be evaluated and compared against conventional training programs to determine such things as improvement in performance levels and time to promotion, as well as other factors.  An end of year evaluation is planned for November 2003.  Based on the results of the pilot, a decision will be made on further expansion of this concept.

Option 5 - An evaluation rather than a test will be made in the TAU using a knowledge, skills and abilities (KSA) assessment to determine whether early promotion is warranted.

Option 7 - This option is fully described in Legal Competency Exam found in (Transformation 10 (P-21)). 

 

Option 8 - This option is being piloted specifically for the GS-12s.  Under this program, the GS-12s must demonstrate possession of the necessary KSAs, through work product reviews and taking the Patent Law and Evidence Course (described in Transformation 10 (P-21)), before being promoted to the GS-13 level.

Option 9 - A structured review process based on KSAs is being used to determine if the specific skill sets are being met prior to promotion.

Part 2 - Certification of Knowledge, Skill and Ability

In Patent Process

for Technical Support Staff

 

Action:

The USPTO should implement examinations or other means to ensure that technical support staff employees involved in the patent process possess the requisite knowledge, skills and abilities needed to perform current and future roles involved in patent prosecution.

Background Information:

The USPTO conducted an initial assessment of the technical support staff in the Technology Centers to determine what knowledge, skills and abilities (KSAs) were needed by the support staff to be successful in performing patent prosecution support roles.  An outgrowth of that study was the identification of critical knowledge, skills and abilities needed by the support staff.  The technical support staff is a vital link to patent prosecution and without their assistance, the patent process would be severely handicapped.  When evaluating current employees for future roles or positions within the USPTO as well as potential new hires, it is essential that proper evaluation of individual skill-sets are made to prevent poor or costly hiring decisions.  Currently, newly hired support staff receive initial training on specific functions within their area of responsibility upon reporting for duty.  Thereafter, employees are provided on-the-job training only to the extent that there are changes in the way the job is performed based on changes in the law, rules, regulation or procedures.  The Agency also created the USPTO University to assist the technical and professional staff in acquiring additional knowledge needed to facilitate the patent prosecution process.  Despite these efforts, perceptions of poor quality lead to decreased customer satisfaction and confidence.

Part of the overall effort to conduct certification of the technical support staff would address the following:

·       A review of the knowledge, skills and abilities required to perform future technical support roles within the USPTO.

·       An assessment of the current staff’s knowledge, skills and abilities to determine the “skills gap”, if any, between what employees currently possess and those that are needed.

·       Curricula need to be developed to fill identified gap(s)

·       The most effective method of delivering the training.

·       The approach to be used to deploy or disseminate this training.

·       When will the agency know the impact of the training or if the skill gap has been closed?

Options Considered:

Option 1:

  Enlist OPM to design a suitability test that will accurately predict which employment candidates are most likely to succeed as a member of the technical support staff.  Implement this profile screening as a component of the hiring process. 

OPM staff, including a Personnel Research Psychologist would study current successful technical support staff and develop a testing tool that targets applicants with characteristics similar to successful support staff to aid the selection process, and spotlight applicants who behave in ways that potentially undermine the mission of the organization, thus eliminating them from the applicant pool. 

Key Features of the assessment program:

·       Matches characteristics of successful support staff so that we can select employees with similar characteristics and maximize the potential for successful hiring, including considerations of those who will have successful lengthy careers at the USPTO. 

·       Intended to reduce the prevalence of counterproductive behaviors.

·       Thoroughly backed by job analysis and extensive information gathering.

·       Would determine what knowledge, skills and abilities are required to perform future technical support roles.

·       Objectively developed and scored using procedures that are widely accepted.

Option 2:

  Develop and implement a testing process that will determine whether a support staff member can be certified for their initial promotion prior to the 52 weeks time in grade. 

As a further means of ensuring that newly hired employees possess the knowledge, skills and abilities to succeed in the Technology Centers or other areas of the Patent Corps, test each employee before promoting them to the next grade.  This would be part of the Kirkpatrick training assessment (a formally recognized pre- and post-training effectiveness instrument) to determine where employees were prior to receiving any training and where they were after receiving pre- and post-training.

Key Features of testing for probationary employees:

·       Establishes a uniform evaluation tool that measures whether a new support staff employee is ready for his/her initial promotion and can be certified as having the potential to be successful once promoted.

·       The assessment will measure whether the employee has improved his/her knowledge, skills and abilities subsequent to any training received.  This assessment should test understanding of basic patent processing and initial functions as outlined in the employees position description.

·       These assessments should be tailored to the grade of the employee.  Tests for Grades GS-5 should not be as rigorous as the test for a GS-9, even though the employees may have been in the office for the same period of time. 

Estimated benefits:

·       Consistency/fairness in promotion determination process.

·       Employees will not be promoted before they possess basic skills and are prepared to perform successfully at the next grade level.

·       Can be used to identify weaknesses of the employees’ training program so that the program can be continually revised to provide the best possible training.

Option 3:

  Require second level supervisors (e.g. Head Supervisory Legal Instruments Examiners) to review a randomly selected sample of the employees work product to ensure that the employee has demonstrated the ability to successfully perform the job at the next higher grade level. 

Generally, the decision to promote support staff has been left to the discretion of the supervisor, with only a cursory review by the second level supervisor.  If the second level supervisor reviews work prior to approving promotions, they may catch potential issues requiring further discussion and supervisors may exercise more caution in making recommendations for promotions knowing their decisions will be scrutinized more closely.  An Administrative Officer above the grade of the employee or other management official could perform this function, but it would reduce the effectiveness unless the Director took ownership of the review.

Key Features of the review process:

·       Need for random review of work.

·       Would require consistency, at least in each Technology Center as it relates to standards to show sufficient skills and effort to warrant promotions.

Estimated benefits:

·       Additional check of quality before promotions.

·       Better quality of work.

·       Increased customer confidence in the work of the employee.

·       Contributes to formation of a culture of quality.

USPTO Recommended Course of Action:

Options 2 and 3.

Implementation progress to date includes:

Option 2 - While we have not hired Technical Support Staff this year, KSAs have been developed for current jobs.  As we make the transition from paper to an electronic environment, these jobs will continue to evolve.  We are currently modifying the KSAs, as necessary, to ensure that training of employees will meet both our current and future needs.  As appropriate, we are incorporating a testing approach that will eventually lead to certification for some positions.  

Option 3  Head Supervisory Application Examiners (HSAEs) are reviewing a randomly selected sample of the employees work product to ensure that the employee has demonstrated the ability to successfully perform the job at the next higher grade level prior to promotion.

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