when the Commissioner and the Board strive together to achieve consistent legal policy to be applied to individual cases which come before the Patent and Trademark Office. The policy established by the Commissioner, through the Board, in the final analysis is more likely to be sustained when challenged in a Federal court, either on direct review or in infringement cases, when the Commissioner and the Board perform their respective roles cooperatively as members of the Patent and Trademark Office team. Hanyt. Mankich Jr Harry F. Manbeck, Jr. Examiner-in-Chief Survey Results May 11, 1992 Chairman and Vice Chairman The positions of Chairman and Vice Chairman of the Board of Patent Appeals and Interferences are classified in the SES, not in the competitive service. The Chairman and Vice Chairman are the approving and rating officials respectively for the position of examiner-in-chief. 1. Have you served on panels where the Chairman and/or Vice Chairman has participated? Yes: 36 (100%) Valid responses: 36 No: 0 (0%) If so, how many times has this happened over the last three years? Valid responses: 35 Comments: Average: 14 "Vice Chairman is rating official and Chairman is approving official. They normally sit at least once every three months or so." "Typically, the Chairman or Vice Chairman acted as No. 2 panel member to check my performance as No. 1 for rating me under my performance appraisal plan." "It has been common practice by the Chairman to place himself and/or the Vice Chairman on Board panels (1) to judge the work (views) of other panel members and (2) to expand the panels in order to favor his views or the Solicitor's views." "Most of these cases were agreeable although I did feel pressure to decide one way or the other in a couple of instances." 2. When serving on a panel with the Chairman and/or Vice Chairman does the knowledge that these individuals are also responsible for your performance appraisal ever inhibit your ability to honestly express your views in the matter? "This is especially so since our new pay plan was implemented, since our performance rating can be based upon their subjective decisions." "One is often left with the impression that if you don't agree with them (particularly the Chairman), that your performance is downgraded." "The panel will be selectively expanded; the Chairman and Vice Chairman are never in the minority." "There is never the same openness in conferences with the Chairman, but somewhat more with the Vice Chairman." "My negative answer is probably due to my particular status on the Board." "In the past, no. After hearing about the Commissioner of Patent's recommendation that he wanted to fire the dissenting member(s) on the Trademark Board for writing a dissent, that had a chilling effect on my expressing my views or writing a dissent." "It hasn't yet, but now with our pay being linked to our performance appraisal, it could have more of an impact in the future. However, my personal view is that my integrity is more important than possible future pay raises." "Not to honestly express my views. I subject these decision(s) to greater scrutiny and find that I write more conservatively." "While I do not consciously think my view was altered, I have been uncomfortably with the thought that I might disagree with the person who was doing my performance appraisal." "The Chairman has expressed his opinion on what should happen in a very authoritative manner. In one case, the panel was told if it didn't affirm, he would remove us and replace us with people who would affirm the PTO. "Not completely, but I tread lightly in some areas." "The Chairman feels that nothing is patentable. His knowledge of law is also out of date. The Vice Chairman is much more objective and up-to-date." "Significantly more care, however, is used in the manner in which these views are expressed." "The Chairman and Vice Chairman are not statutory members of the Board, and should be denied any role in the judicial proceedings of the Board." 2 (a). Has this knowledge ever served as a chilling effect on your responsibility to independently decide the issues before you? "It is very difficult to tell them that you want more time to think about an issue. The Chairman seems to be in a hurry to get the cases decided. Also the Chairman tends to put himself on the most important cases with which he seems to have ascertained how the Commissioner 'wants' the case decided." "Current operation of the Board is nothing less than a national disgrace. members. 35 U.S.C. $7 spells out who may serve on panels, as Board By its very terms, that statutory provision precludes |