A top government investigator told lawmakers Tuesday that a lax culture at the U.S. Patent and Trademark Office “tolerates” serious employee abuses, including fraudulent claims by patent examiners about the hours they put in when they work from home.
In testimony at a House hearing, Commerce Department Inspector General Todd J. Zinser said the agency’s award-winning telework program — under which about half the 8,300 patent examiners work from home — has a dark side because managers are prevented from punishing employees who abuse the freedom they have.
Zinser offered his assessment at a rare joint hearing of the House Oversight and Government Reform Committee and the House Judiciary Committee, which are looking into wrongdoing discovered last year during an internal investigation by patent agency officials.
As The Washington Post reported this past summer, the most damaging conclusions of that investigation were removed from the final report before it was provided to Zinser’s office, which had received multiple whistleblower complaints.
Patent Commissioner Margaret Focarino told lawmakers that her agency “takes [time and attendance abuse] very seriously” and has made changes to “strengthen the oversight and management” of the telework program. The changes include new training for supervisors and more frequent communication online between managers and examiners.
She said supervisors can now request computer records of employees they suspect of misrepresenting the time they’ve worked. Such access has long been denied by agency officials.
Focarino acknowledged that the Post report — which detailed allegations that employees had repeatedly lied about the hours they worked, received bonuses for work they did not do and often escaped discipline — had “raised some serious issues.”
“Please be assured that we are taking many necessary steps to strengthen and improve” the telework program and controls, she said.
In opening remarks at the hearing, Rep. Bob Goodlatte (R-Va.), chairman of the Judiciary Committee, said it is “disturbing” that the management of the patent office “would not allow a thorough investigation” of the allegations. He said that stand called into question statements by patent office officials that the abuses were isolated and not systemic.
Goodlatte and Rep. Darrell Issa (R-Calif.), chairman of the Oversight Committee, said poor management that allowed patent examiners to commit time and attendance fraud has the potential to slow the pace of patent approvals critical to innovation.
Rep. Gerald E. Connolly (D-Va.) pointed out that some of the most damning allegations of telework abuses have been levied by patent office employees, who he said resent having their “reputations dragged through the mud by a small minority of cheaters and bad apples.”
In his testimony, Zinser said his office is investigating a dozen fresh reports of fraud by patent examiners. One case involves an examiner who allegedly claimed more than 300 hours of work that hadn’t been done but was not fired. Another examiner allegedly falsified time and attendance records at a cost to the government of more than $24,000. In other cases, examiners’ violations were reported by lower-level supervisors and then “disregarded by more senior management.”
Zinser told the joint hearing that the agency’s culture “has deemphasized time and attendance rules in favor of production goals.” And he called various practices that allow patent examiners to collect bonuses, overtime and salaries for work they did not do “a serious problem.”
Zinser told lawmakers that examiners who knowingly submit incomplete work for credit to meet deadlines received “millions of dollars” in performance bonuses in the past three fiscal years.
However, he said, “based on the evidence we have seen so far, I do not think abuse has reached a systemic level.”
In response to questions from Issa about previous statements that appeared to play down the alleged abuses, Focarino said, “I want to reiterate that we take those allegations seriously.”
Grilling her later in the hearing, Rep. Tom Marino (R-Pa.) said of the reported abuses: “It’s theft. . . . It’s outrageous.”
Connolly asked Focarino about the charge that the incidents represent “a culture of fraud” at the patent office. “No, I don’t think they do represent a culture of fraud,” she said. “The vast majority of the men and women working at the patent office are hardworking examiners.”
Questioned by Rep. Doug Collins (R-Ga.) about a practice, called “end-loading,” or allowing patent examiners to wait until the end of the quarter to submit most of their work, Focarino said that “it’s not necessarily a problem.” But she said the patent office is expanding a pilot program aimed at greater supervision of patent examiners who fail to space out their reviews over a quarter.
Late last week, patent officials were negotiating with the agency’s three unions over new tools for managers to monitor their staffs. Both versions of the internal review had concluded that labor-management policies in recent years left supervisors with limited access to records that could prove suspected time fraud, resulting in negligible disciplinary action.
Robert Budens, president of the Patent Office Professional Association, which represents 8,300 patent examiners, testified that the allegations of wrongdoing are isolated cases in the context of the agency’s success last year in reducing a troublesome backlog of patent applications.
“Despite these remarkable accomplishments . . . some have chosen to attack the employees and management of the USPTO with unsubstantiated allegations of wrongdoing,” Budens said in prepared testimony. He criticized efforts to institute new controls, calling them “procedures for monitoring every minute of examiners’ work time that ignore the practical realities of the patent examination process and are both intrusive and unworkable at the USPTO.”
Budens told the lawmakers, “There is no systemic plague of poorly performing employees at the USPTO.”
Rep. Frank R. Wolf (R-Va.) a staunch advocate of telework who has criticized Commerce Secretary Penny Pritzker as having failed to punish wrongdoers, testified that problems at the patent office, if not addressed, could jeopardize telework agreements across the government.
“To say I am extremely disappointed that PTO failed to manage its telework program and, in general, to provide adequate managerial oversight throughout the organization would be an understatement,” Wolf said.
“There are some who are abusing the telework program,” Wolf said. “They need to be fired. In all honesty, they should already have been dismissed.”