fixed rate for all. We sit as panels of at least three. There is no rational reason for paying us at different rates. It is difficult to see that a newly-hired member paid in the $80,000's is going to feel the equal of a member paid substantially more. Under the existing pay plan, new members can advance more quickly depending on how many opinions they write. Quality is not a factor. The pressure to reach the the increased quotas can only serve to minimize their efforts to make sure the decision is the best under the facts and (under the) law.

"DOC and PTO have done their best to corrupt the environment at the Board over the last six years since the quotas were imposed. The pay plan is only a last step to make sure that decisions are quick and dirty and in accord with management's desires. Hopefully, Congress will take this opportunity to restore the Board to its statutory basis and allow an environment to flourish in which each member can vote his/her own conscience, without being concerned whether that vote will affect (his/her) pay or performance rating."

"We are discouraged from imposing rejections under 37 C.F.R. $1.196 (b) and/or remanding. At times, we are also 'encouraged' to follow Management's 'interpretation' of case decisions."

"Incentive award system - At the end of each fiscal year, Management pays cash bonuses to Examiners-in-Chief whose 'numbers' are good, 1.e., who have authored a sufficient number of opinions. This emphasis on who authored the most opinions exacerbates the operation of a de facto one-person Board. We are not encouraged, as we should be, to work in teams or in panels of three in discussing the issues, weighing and evaluating evidence, and adjudicating each case.

"Although I have personally benefited from the incentive award system over the years, nevertheless, I find that (this) system feeds into a shameless 'numbers game' and has no place at the Board. In conclusion, the combined effect of the quota system, the non-statutory Chairman and Vice Chairman, the incentive award system, and our new pay plan serve to seriously undermine the ability of Examiners-in-Chief to exercise independent judgment."

"The pressure of having individuals who are in a position to affect my performance appraisal and pay also in a position of influence over how a case is decided by a panel on which I sit. Further, if the Commissioner is free to replace or expand a panel at will, at any time in the process (e.g., even after a duly appointed panel has deliberated and decided) and such actions may detrimentally affect the productivity on which your appraisal and pay depend, then he may bring great financial pressure to bear on a Board member who reaches decisions with which the Commissioner is not in agreement. Questions

then may arise as to whether the Board member may truly be independent or impartial in his/her decisionmaking responsibilities."

"Lack of proximity to main PTO search files."

"The use of an enlarged panel to set Board precedent, when in fact an en banc Board would probably decide the issue the other way. The appraisal plan is totally inept at evaluating performance as to quality or even the amount of work that one actually does in a proper three-man decision - it does not want a proper three-man decision with full consideration of the issues and review of the record.

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"Since the Board members have been replaced with non-Presidential appointees, provided an appraisal performance plan based on numbers, installed SES Chairman and Vice Chairman and used relatively expanded and controlled panels - never an en banc decision since 1985, the independence, prestige, and standing of the Board has been substantially reduced such that now it is nothing more than a post examining group. I have been on the Board since 1973 and am fully cognizant of the diminished status of the Board."

"Any case that has any new legal or technical issue is to be brought to the Management's attention, and they then adjust the panel to get the result desired. The only way to avoid this is not to bring such issues to their attention by not overtly recognizing them as unique issues and deciding them without interference."

"As a result of the conversion of the Chairman's position to SES (thus placing the Chairman more under the will of the Commissioner and the Solicitor's Office), a number of practices have been instituted through the Chairman with a view towards causing the Board's views of the law to reflect those of the Commissioner and the Solicitor's Office. These practices have had the effect of usurping the Board's decisional independence or judicial independence, as it is also called, in exercising its statutory duty of independently deciding appeals of Examiners' rejections. The major practices are: "(1.) The EICs' performance appraisal plan, subjecting the EICS to a performance rating by the Chairman. While the Chairman now is the approving official', it is nonetheless he, not the 'rating official' (the SES Vice Chairman) who determines the ratings for BICs. These performance ratings now directly determine the BICs salary under the new pay plan. By controlling the BICS' ratings, the Chairman therefore controls the EICS' salary, thus influencing the EICs to conform to Management's viewpoint of the law.

(2.) The Chairman's assumption of power to select the EICS in making up the panels for cases to be decided. This has resulted in the practice of 'packing' panels with Board members (statutory members and non-statutory members viz the Chairman and the Vice Chairman) to ensure a decision conforming to the one desired by the Commissioner and typically recommended by the Solicitor's Office.

(3.) The placement of either the Chairman or Vice Chairman as No. 2 in three-person panels, for the purpose of rating the performance of the No. 1 EIC assigned to write the decision.

(4.) The requirement by memorandum from the Chairman for EICs to report all cases involving special issues and issues of first impression, to give the Chairman the opportunity to expand the three-person panel with members selected by the Chairman or to convene a panel of all-new members selected by the Chairman.

(5.) The situations where a duly constituted three-person panel has reached and rendered a proper decision which has been written and signed, but not yet mailed, the assumption of power by the Chairman to scrap the decision and to convene a panel of different members to reach an opposite decision, where the decision of the original panel is considered to be unacceptable.

"(6.) The assumption of power by the Solicitor's Office in deciding which Board decisions shall be published in the BNA, and hence which decisions shall become precedent to the Board.

(7.) The cooperation of the Chairman with the Solicitor's office in requiring an EIC assigned to write a decision to adopt an opinion written by the Solicitor's Office."

"Chairman issued a memo, dated Dec. 2, 1991, which obligates me to follow a section of the MPEP, a Commissioner's order or notice, regardless of any court precedents. As a judge, I am obligated to follow the Federal Circuit decisions which are the stare decisis. If I violate the Commissioner's order or notice, I'm insubordinate, and can be disciplined or fired. If I don't follow the stare decisis,

I'm violating the Judicial Canons of Ethics. I have attached a copy of the memo. (Copy was attached.)

"I would do away with awards for performance above fully successful. 'Quantity money tends to reduce quality! I would take Management

including the Commissioner -- off panels because of the influence it can exert. I would prefer to see no numerical goals in the performance plan -- although there were perhaps abusers in the past."

"When a panel is stacked with the Commissioner and Assistant Commissioner to effect policy, their decision becomes binding precedent on the Board. To decide a case differently would involve considerable risk."

It is easy

"Saul Serota, in my opinion, is a petty, abusive tyrant. to avoid his tantrums by avoiding any legal innovation or controversy. The damage he has done to the prestige of the Board, as an institution, and to the morale of employees is incalculable."

"Yes; the Solicitor's Office apparently decides what appeals will be strongly argued depending on their (the Solicitor's Office's) view of the desirable law or policy which should govern the outcome of the appeal."

"(1.) The unofficial hierarchy among Board members created by (1) the unequal salaries of the Board members and (2) the personal relationships between the respective Board members and the Chairman and/or Vice Chairman.

For

(2.) Infringement by the Chairman and the Solicitor (with the sanction of the Chairman) on the Board member's authority and obligation to exercise independent judgment in deciding cases. example, see attached memo. (December 2, 1991 memo from Chairman to all EICs is attached, requesting that they inform him of any 'unusual' case prior to a decision.)

"The general backdoor approach that has been in vogue as to not directly contesting decisions with the court; instead, memos are published and conflicting policies set forth which are then almost religiously pursued, with the apparent risk of heresy for those not jumping on the bandwagon. These are not factors giving one great confidence in the fairminded or evenhanded temperament of overall Management."

(1.) The Commissioners and other Management officials (i.e., the Chairman and Vice Chairman) should not be allowed to sit on panels or influence the decision in any way.

" (2.) The Solicitor's Office must be taken out of the loop. The Board should have the right to make a mistake and the Solicitor's Office should simply defend the decision to the best of their ability rather than prejudging it.

" (3.) Unreasonable number quotas must be eliminated or at least reduced to a bare minimum, i.e., 60 decisions per year.

"(4.) If our work is to be reviewed at all by Management it must be on the basis of quality not quantity. In this regard, I suggest some sort of peer review.

(5.) All BICs should be paid at the same level. Outstanding work should be rewarded under the incentive awards system. If the present step promotion system is retained, steps should be given on the basis of time in the step coupled with satisfactory performance. If other factors are considered, they must be based on quality not quantity."

"Lack of time due to my quota, and undue pressure of Chairman and Solicitor."