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management officials classified in the SES. Nevertheless, the Chairman and Vice Chairman routinely serve on panels and exercise great influence on decisions handed down by the Board. Bearing in mind the statute, I question the legality of each and every Board opinion where the Chairman and/or Vice Chairman served on the panel. As stated by Judge Markey, former Chief Judge of the Federal Circuit, 'why not follow the statute'?"
"While I have thus far been able to retain my independence, there certainly is a chilling effect in that serving on a panel with these individuals causes a feeling of greater pressure to agree with their views as compared with the members of of the panel. There is a certain awkwardness about it."
"Not a chilling effect; just reality as to how the current Board is After a few EICs are told to follow instructions or face charges of insubordination, the message is clear."
"Of course I have found that you only argue the very important issues, but give in on the lesser issues quickly."
Respondent refers to his/her answer to question two of the survey, which reads: "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."
"There is concern not to rock the boat; there is fear of repercussions."
"The reader of this survey ought to know (1) I am retirement age, (2) I have been an Examiner-in-Chief for 18 years, and (3) I knew and worked with the present Chairman prior to the time he assumed that position, and he knows he cannot push me around like I have seen him do to others."
Respondent refers to his/her response to question 2, which reads: "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."
"Although in the final analysis I have never compromised my
principles, the knowledge that he could "unload" on you because he is your rating official is always present in your mind. And his actions on a daily basis affirm this."
"I tend to take whatever position the Chairman and Vice Chairman adopt unless I am in serious disagreement therewith, at which time I would disagree. I also tend to prepare cases very well and try to get an indication from the Chairman which way he will decide before finalizing my position."
"But thought twice before acting."
"The Vice Chairman is quite fair and objective.
Chairman has preconceived notions, and is too stubborn to change his mind. Both the Chairman and the Vice Chairman are seemingly unwilling or unable to buck management. They never seen to represent the position of the Board."
"I find myself less open in discussing the issues with these officials than with my colleagues.
When serving on a panel with the Chairman and/or Vice Chairman,
Yes: 25 (69.4%)
Unknown: 1 (2.8%)
"I have had other Examiners-in-Chief refuse to consider my concerns about a circulating opinion since the Chairman is in the panel. have felt that changing their mind or reconsidering the approval we take on an issue will be charged as an 'error' or somehow reflected in their rating."
"I particularly think the younger members feel pressured."
"While I have no concrete evidence of such, I have had the distinct impression that some EICS (especially some of the newer members of the Board) are more apt to readily agree with the Chairman than with other panel members."
"Some obviously decide in accordance with the Chairman or Vice Chairman. This is particularly true in expanded panels."
"If you make an issue with a case that was decided with the Chairman or Vice Chairman, it is extremely difficult to get a change made in the decision."
"Others do not enjoy my status."
"I found that junior members were more likely to agree with the Chairman or Vice Chairman."
"Due to the rating system in place, there is a tendency to fall in line with the Chairman's position."
"I cannot say since in the large majority of cases, the EIC designated as No. 3 does not actively or meaningfully take part in the decision making process."
"I have been on several panels where another EIC predicated his decision on a desire not to disagree with the Chairman.
"I believe the more junior members of the Board have not exercised independent judgment because of the Chairman's personality and/or their fear of an adverse rating."
"However, when sitting on the panel that included the Commissioner, I sincerely believe that some EIC's lost their independent judgment."
"To the extent that they are bothered by his presence."
"I have heard more junior people express concern regarding the presence of the Chairman on a panel."
"Although caution is sometimes evident, especially by those with previous run-ins."
"Obviously they feel the same pressure that I do."
Performance Appraisal System
Do you believe that the existing opinion writing quota system reflected in your Performance Appraisal Plan influences the judicial process and/or adversely affects the decisions of the
"There is too much emphasis on 'getting this case out' instead of considering the best way to decide the issues presented."
"It is my opinion that several individuals on the Board have sacrificed quality in order to receive higher pay and rewards."
"The quota system has created, out of whole cloth, an untenable atmosphere of tension and low morale in the office. That system, complete with its bean-counting mentality, has been instrumental in converting a statutory, three-person Board into a de facto one-person Board. The quota system encourages Examiners-in-Chief to play a 'numbers game' with respect to authority opinions; but does not encourage careful review and evaluation of cases, and adjudication of cases, in panels of three.
"The existing system places great emphasis (on) quantity of decisions (an easily measured value) rather than on quality of those decisions (a not-so-easily measured value)."
"It generates many bad/wrong decisions, reduces or eliminates a complete review of the record and inhibits 196 (b) rejections and 196 (d) recommended rejections."
"On 'on brief' cases the third Board member only has the time to proof read and pick up obvious errors. He/she never gets into the merits unless some obvious error leads to the involvement."
"Some EICs are more interested in the number of decisions they write, rather than thoroughness or quality, because the number of written decisions, for the most part, determines the EIC's rating which, under the current pay plan, determines the EIC's salary."
"Board members tend to be less thorough, in striving to meet quotas."
"While I endeavor to fully review the entire record and carefully consider each issue in every appeal, every year except one that I have been at the Board, I have had to rush my review or take shortcuts during the last few months of the FY just to attain the satisfactory level. Making appropriate new rejections is discouraged."
"Justice and a piece-work quota system are simply incompatible."
"Some of those who try for higher ratings (higher than fully successful) cut corners and reach erroneous results."
"Some of the slower EICs appear to be pressed for time immediately before the end of a rating period."