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"If one chooses to write a full decision in many cases, and give the appellant and/or examiner all the reasons to which he is entitled, you cannot do it and keep up protection."

"Not since the electrical goals were adjusted."

"A number of comments are in order:

(a) It should be recognized that our Performance Appraisal Plan (PAP) provides a specific opinion writing quota system for ex parte appeals but not for inter partes cases, i.e. interferences. Yet, in the interference area the PAP is applied by comparing the quantitative output of a particular Examiner-in-Chief to that of others also working on interference cases to determine a rating for that individual. Thus, those Board members primarily working on inter partes cases are also evaluated on the basis of a quota system even though such a system is not explicitly set forth in the PAP. This despite the fact that inter partes cases vary greatly in technical complexity and in the range of substantive and procedural issues raised by the parties. The quota system for interferences is also applied without regard for technical discipline, i.e. chemical, mechanical and electrical; unlike the quota system used for ex parte appeals.

(b) The obsession with numerical goals manifested in our PAP, as written and as applied, is not appropriate with respect to a position, namely that of Examiner-in-Chief, requiring a high degree of competence in legal and scientific matters as well as requiring the exercise of judicial independence. It is particularly inappropriate for a Board whose decisions have a significant impact on technologies, e.g. pharmaceuticals, energy development, environmental protection and genetic engineering, critical to our nation's welfare and competitiveness in the world marketplace.

(c) The undue reliance on a quota system in the current PAP presents, at the least, the appearance of compromising the professional integrity of all Board members and the Board as a whole. The quota system has been given increased emphasis recently by making it a critical factor in implementing the new pay plan for Examiners-in-Chief under the FEPCA of 1990. The institution of steps in the new pay plan is inconsistent with the historical and statutory treatment of Examiners-in-Chief as equals. Moreover, it would appear that steps 6 and 7 of the new pay scale will be unattainable by a substantial majority of Examiners-in-Chief since those steps can only be reached by obtaining an outstanding performance rating for two consecutive years. Thus, most Examiners-in-Chief will remain at step 5 with a rate of pay essentially the same as ES-3, which is the cap designated for former GS-16s by the recent Commerce Department guidelines. Consequently, the position of Examiner-in-Chief, formerly paid at the GS-17 level, has in effect been downgraded to a

pay status comparable to that of former GS-168. This is inconsistent with the objective of pay comparability set forth in FEPCA, and is demoralizing to say the least.

"(d) The Board of Patent Appeals and Interferences (BPAI) has always been recognized as a vital component of the patent system in the United States. The decisions rendered by the BPAI play a significant role in enhancing the stature of the Patent and Trademark Office and promoting technological innovation, thereby having a profound effect on our nation's economy. Unlike members of other comparable quasi-judicial bodies, Examiners-in-Chief are required by statute to be proficient in the field of science as well as law. I sincerely believe that the PAP and pay plan for Examiners-in-Chief, as now constituted, demean both the stature of the BPAI and the professional integrity of its members."

"Time not available to properly evaluate decisions other than those I author; or to prepare possible concurring or dissenting opinions."

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"There is not sufficient time to reflect on, discuss and do the necessary legal research for many decisions."

"Far too much weight on mailing decisions as author."

"A reversal is much easier to write. Therefore, the high producers have the highest reversal rate. Dissents or concurrances are not feasable since there is so little time."

5. Have there been instances at the end of a month, or end of the fiscal year, when you felt extremely pressured to "get out a case" quickly?

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"At the end of every month EICs carry their decisions to my office."

"Not personally."

"I do not operate on a 'numbers' basis, I do the best I can which has in the past been enough for at least a 'fully successful'. Nor do I let someone else pressure me into getting their case out at the end of the month."

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If yes, please provide estimate of the number of cases which have been so affected during the past two years.

Valid responses: 26

Comments:

Average: 18

"One is always pressured to make the numbers 'or else'."

"When I first began at the Board, on the last day of the fiscal year, I hurried through three related decisions to assure I would achieve the requisite 'count' and help the Board achieve its goals."

"There is insufficient time for review of others' work at the end of the month, particularly the high number of decision producers that produce a lot of substandard work."

"If you are under quota, you press to make sure that you make it. You can make it if you press. W

"In September (the last month of our fiscal year), production of most EICS is up to achieve a higher year-end rating, particularly under the current system in which the EICs salary is tied directly to the rating which, for all intents and purposes, is determined by the number of decisions written in the fiscal year."

"These are interference cases, such cases are more involved than appeals and goals are lower. They involve preliminary motions, discovery, testimony and final hearing, typically taking two and a half years to terminate."

Respondent refers to his/her response to question 4 of the survey, which reads: "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."

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"Also, decisions are subject to less scrutiny by the other panel members at the end of rating periods."

"Substantial number. With about five per year where additional time such as for further search could result in different opinion."

"Most as No. 3 when others trying to get their mailings out for monthly count. It is very busy at end of month and No. 3 cases hardest to review in any depth."

"Every year I end up several cases short of the goal as the end of the year approaches. This forces me to look for shortcuts. This is not right."

"Every case involves some pressure for a 'quick' decision."

5 (b).

If yes, do you believe that the time pressure affected the quality of your decision (s)?

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"We do not have time to rethink or think through a decision once we have made an initial decision."

"Although I try very hard not to let it, I am afraid it has on occaision."

"Although the outcome of the decisions was unaffected, the quality affected was that related to the exactness of the language of the

decision. Time pressure prevents the 'polishing' of the decision language."

"Not the decisions that I author."

"Of course."

"Not consciously."

6.

Have there been instances where you have been conferring with a
panel member on a case (to which you were assigned to write the
opinion) in which you felt the panel member was giving less than
full consideration to the issues due to that panel member's
concern that he or she was "behind" on his or her own
quota?

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"Both when the EIC is behind on his quota to make satisfactory, as well as other ratings in order to receive cash performance awards more often the latter."

"Quite often if the case is complex technologically, I am required to figure it out by the No. 1 man on the panel. Often legal research simply isn't done."

"Note No. 3 usually not part of conference when its on brief case, even for heard cases No. 3 usually minimal input unless swing vote needed."

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