Link – expanded responsibility overtaxes limited USPTO resources

Relatedly, Congress regularly delegates new authority to agencies. 110 This requires an agency to perform a balancing act and can lead to backlogs and delays as the agency seeks to address its new mandate while managing preexisting duties.111 During the implementation of a new program, there often is an increase in employee confusion over workflow patterns and objectives and how adjudicative tasks connect to the agency’s overall goals and priorities.112 Additionally, if new authority is delegated without a corresponding increase in resources to expand an agency’s capacity (as often is the case), implementation problems tend to develop in some or all agency programs as the agency becomes overloaded and overall performance suffers.113

B. Agency Structure

An agency’s organizational features can influence its ability to adjudicate in a timely manner. Aspects of an agency’s structure such as its size, complexity, degree of centralization and hierarchy, and formalization of standard operating procedures not only can influence performance but also can result in differing organizational values and preferences within the agency.114 For example, valuable time can be lost as investigators struggle to navigate large and complex organizational structures to obtain the information and approvals necessary for enforcement. Similarly, a lack of standard operating procedures with respect to an agency’s pre- hearing, hearing, and decision practices can result in variation and delay as adjudicators proceed through the adjudication process. While the next subsection discusses the effects of process on timeliness, this subsection highlights three common structural features that contribute to backlogs and delays in adjudication.

1. Size and Multiplicity of Goals

Although all agencies must balance the performance of many tasks at once, some agencies have less concentrated operational missions than others. Compare, for example, the Chemical Safety and Hazard Investigation Board (CSB) and the Department of Commerce. The CSB’s mission is to investigate (or cause to be investigated) and to determine and report to the public in writing the facts, conditions, and circumstances and the cause or probable cause of any accidental release of chemicals resulting in fatality, serious injury or substantial property damages.115 The agency employs approximately 32 people116 and, as of October 1, 2023, has six open investigations.117 In contrast, the Department of Commerce is tasked with fostering, promoting, and developing foreign and domestic commerce.118 The agency employs over 48,000 people who work across 13 bureaus, each with its own set of tasks.119 Just one of those bureaus, USPTO, processes over a million patent and trademark applications each year.120 Given this variation in operational mission and agency size, ensuring timely adjudication likely is a much more complicated endeavor for the Department of Commerce than for CSB.

Simply put, it can be easier to achieve organizational efficiency if an agency has a cohesive set of functions. Uneven performance in agencies such as the Department of Commerce often can be traced to its diverse duties.121 Multiple-purpose agencies must work hard to promote collaboration across organizational units and mitigate conflicts that may arise as different units operate under different time constraints and policy environments under limited resources.122