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TELEPHONE (703) 305-8578 Dedicated to the improvement and appreciation of the United States Patent and Trademark Systems
PATENT AND TRADEMARK OFFICE SOCIETY P.O. Box 2089 * ARLINGTON, VIRGINIA 22202
- STATEMENT SUMMARY -
TESTIMONY OF TIMOTHY REARDON, CONGRESSIONAL LIAISON HEARING ON PROPOSED CORPORATIZATION OF THE U.S. PATENT AND TRADEMARK OFFICE
March 8, 1996
The Patent and Trademark Office Society (PTOS) advocates that reorganization of the Patent and Trademark Office (PTO) should emphasize and enhance the professionalism of the patent and trademark examining process. This professionalism must guard the interests of the inventor, the trademark owner AND the American public.
The PTOS recognizes that the actual purpose of these deliberations is to enable PTO management to manage more effectively and become more nimble in responding to the needs of the patent and trademark community. A government agency, to be successful, MUST have the capability to be ever-evolving in responding to the needs of the community it serves.
The PTOS urges that the following factors be taken into account when considering options for reorganizing the PTO:
* Providing daily operational independence from the Department of Commerce (DOC) while assigning policy matters to the DOC or other trade related cabinet-level officer or Under Secretary.
* Increasing management flexibility while ensuring accountability to the patent and trademark community and the American public.
* Preserving job security for Patent and Trademark professionals that fosters impartial quasi-judicial decisions in the granting of patent rights and trademark registrations.
* Equipping management with the flexibility to hire and maintain a highly qualified professional work force.
The PTOS appreciates the increased management flexibility which would result from the enhanced authority that H.R. 1659 and H.R. 2533 give the Commissioner, yet finds a need to match this authority with more accountability than H.R. 1659 and H.R. 2533 provide. Greater accountability to the American public could be realized by creating a board of directors vested with the ability to curb inappropriate actions of the Commissioner. Matters upon which the Board could have oversight would include policies, budget, appointment of officers, debt accumulation and real estate acquisition.
TELEPHONE (703) 305-8578
Dedicated to the improvement and appreciation of the United States Patent and Trademark Systems
Mr. Chairman and Members of the Subcommittee:
The Patent and Trademark Office Society (PTOS) is honored to have the opportunity to provide this testimony to the Subcommittee on Courts and Intellectual Property on the proposed corporatization of the Patent and Trademark Office (PTO). We hope that this testimony will give the members of the Subcommittee the PTOS perspective of the working professionals at the PTO, and assist you in deciding the future of the Patent and Trademark Office.
The Patent and Trademark Office Society has been in existence since 1917. The PTOS is a voluntary, professional organization independent of PTO management and PTO unions. As an independent organization, we emphasize --- we are neither a union nor a part of the PTO management. The PTOS membership includes Judges, former Commissioners of the Patent and Trademark Office, PTO management, patent attorneys, patent agents, patent examiners, trademark attorneys, other PTO personnel, and other intellectual property related persons. We currently have over 2000 members.
The mission of the PTOS is to foster the improvement and appreciation of the United States Patent and Trademark Systems and to encourage professionalism on the part of its members and of the intellectual property community as a whole. By our definition, "professionalism" is that which dutifully labors to administer to the interests of the inventor, the trademark owner, and the public.
The PTOS upholds its mission by encouraging professionalism through publication of the Journal of the Patent and Trademark Office Society, a scholarly journal containing articles submitted by practitioners in the field of intellectual property. The Journal is distributed to all PTOS members, and thereby encourages an exchange of ideas in the fields of patents, trademarks and copyrights by providing a forum for the discussion of legal and technical subjects in these fields. The PTOS also upholds its mission by supporting activities within the intellectual property community, such as co-hosting the opening of the National Inventor's Hall of Fame this past year.
The PTOS' interest in testifying is to focus attention on the need to emphasize and enhance the professionalism of the trademark and patent examining process when considering options for reorganizing the PTO. This professionalism must guard the interests of the inventor, the trademark owner, AND the American public.
I. The Need for Change and the Need to Keep What Works
Certainly, some would say the Commissioner of Patents and Trademarks is limited by the present structure from implementing negative change. That may be true. Also true is the observation that the Commissioner --- no matter how dedicated to the importance of intellectual property in our society, no matter how skilled in managing a five thousand employee agency, no matter how progressive in bringing modern tools and management techniques to the operation of the PTO -- - is limited by the present structure of the institution from implementing positive change.
The PTO cannot reach its full potential under the constraints of the present system. These constraints inhibit the ability of the Office to meet growing demands for processing applications. One constraint is the lengthy and burdensome procedure for acquisition of office space to house new employees hired to process the increasing volume of applications. Another constraint is the procedure for acquisition of modern resources and equipment vital for serving the patent and trademark community and the American public. Productivity and quality goals are achieved by giving employees the proper tools.
Expensive delays encountered in acquiring property and equipment through the Government Services Administration (GSA) make it difficult to provide the necessary space and resources to PTO working professionals, and contributes to a backlog of unprocessed applications. A large backlog of unprocessed applications in the PTO ultimately leads to dissatisfaction in the patent and trademark process. This backlog becomes more significant under the new General Agreement on Tariffs and Trade (GATT) guidelines, which sets the patent term to extend 20 years from the date of filing. Furthermore, a portion of PTO collected user fees which are essential to the acquisition of property and the technological advancement of the PTO are removed for other government functions.
Therefore, the PTO must be relieved of the constraints of the present system that hamper speedy, quality service. When Congress enacted the Government Corporation Control Act (GCCA) in 1945, it recognized that budgetary and other control systems designed for traditional agencies were unsuitable for revenue producing and self-sustaining enterprises, such as the PTO. In enacting the legislation, Congress emphasized its intent to provide accountability and oversight without interfering with the required operating flexibility of the corporations affected.
II. The PTO is a Two Hundred Year Old Institution
While some believe the reasons for these deliberations are limited to allowing the PTO to use its own funds and to be free from federal full time employee (FTE) ceilings, the PTOS recognizes that the actual purpose is to enable PTO management to manage more effectively and become more nimble in responding to the needs of the patent and trademark community. A business, to be successful, MUST have the capability to be ever-evolving in responding to the needs of the community it serves.
At the same time, however, we the PTOS are naturally concerned about change to this 200 year old institution. This is not to say that we are against change, rather we are concerned about the impact that corporatization of the PTO will have on the overall intellectual property system. The intellectual property system involves the interaction of trademark owners, inventors, Patent and Trademark Office employees and patent and trademark practitioners. Most importantly, the intellectual property system includes and affects the public, for it is they who benefit most prominently from its success and integrity. The PTO does need to change, and it needs the flexibility to change. Without question, the PTO must improve the timeliness and quality of service to the intellectual property community while still protecting the American public.
As proposed in H.R. 1659, the government corporation should not be subject to FTE ceilings since limitations on staffing could impede the Patent and Trademark Corporation (PTC)'s ability to serve the patent and trademark community by delaying the processing and issuance of patent and trademark grants. Since the PTO is user fee funded, the PTO revenue depends on the amount of work accomplished by PTO employees. A mandatory FTE ceiling would limit the size of the workforce and, hence, limit PTO revenue.
III. Relationship of the Patent and Trademark Office with the Department of Commerce
One means for increasing operating flexibility is to give the corporation direct statutory powers. Currently, the Secretary of Commerce is empowered to vest any of the PTO's functions in himself or in any other official of the Department of Commerce (DOC). Thus, while fully integrated into the DOC, the PTO is subject to outside operational control. Independence from operational control by the DOC is necessary to increase management flexibility and effectiveness.
Even so, full independence of the PTC from a cabinet member would not facilitate the alliance of patent and trademark policy with the broader economic and trade policies. This alliance is crucial in a time when intellectual property forms the cornerstone of growth industries and is such an important component of U.S. economic competitiveness. Therefore, the PTC would need a cabinet member representing PTC interests with the President, other executive departments and Congress.
Properly crafted, a corporate charter could reduce problems associated with outside operational control, but preserve the necessary relationship with a cabinet officer. The best choice for the PTC appears not to be integration into the DOC, but instead placing the corporation under the policy direction of the Secretary of Commerce or another trade related cabinet member while empowering a Commissioner/Chief Executive Officer (CEO) to conduct all aspects of daily operation. This cabinet member or a newly created Under Secretary for Intellectual Property could work with other government departments to develop U.S. policy with respect to intellectual property. Such a direct relationship would maintain the ties necessary for the PTC to be responsible to the needs of both the national and international community.
IV. Role of Commissioner\Chief Executive Officer
The proposed changes in H.R. 1659 will greatly impact the role of the Commissioner. Under the current law, 35 U.S.C 3(a) specifies that the Commissioner, the Deputy Commissioner, and the Assistant Commissioners shall be appointed by the President with the advice and consent of the Senate. The Secretary of Commerce shall appoint all other officers.
While the selection and appointment of the Commissioner remains unchanged between 35 U.S.C. 3 and H.R. 1659, the titles and appointments of virtually all other officers have been changed. The most significant and over-riding change is visible in the proposed power of the Commissioner. Other than his or her own appointment, the Commissioner is now responsible for the appointment of all other officers of power.
In this unconstrained environment, the Commissioner would have the ability to select those persons with whom he or she is best able to work, and delays caused by presidential appointment and Senate consent would be avoided in the case of officers under the Commissioner. The Commissioner may also name officers and employees to address concerns or accomplish tasks which previously had gone undone or "fallen between the cracks" of other persons' jobs.
However, we must also consider the consequences of a lack of checks and balances on the appointment of officers. The proposed requirement that the Deputy Commissioner of Patents and the Deputy Commissioner of Trademarks be persons with "demonstrated experience in patent law and trademark law" respectively, is a minimal and vague burden for the Commissioner to prove in his/her selection process. The Commissioner would have broad powers to define and select officers, employees, and agents of the Office. While this power would provide the Commissioner with flexibility, the Commissioner alone would "consider what is necessary to carry out its [the PTC's] function" and to "define the authority and duties of such officers and employees and delegate to them such of the powers..."
Questions arise as to how and if a Commissioner might know all that is necessary to carry out all the functions of the PTO, and when the Commissioner would have the time to define such authority and duties. Additionally, since Commissioners are selected for six year terms and available for reappointment, the concern arises whether each new Commissioner would come in and "reorganize" by appointing new officers, employees, and agents, and eliminating those appointed by the previous Commissioner. This would potentially put the PTO in a six-year cycle of flux which would be harmful to a consistent policy in the administration and examination of patent and trademark applications. Consistent Policy is necessary to maintain uniform standards upon which patent and trademark rights are granted and enforced.
Perhaps to address the above considerations, H.R. 1659, sec. 103 sets forth that the Commissioner shall consult with a Management Advisory Board "on a regular basis relating to the operation of the PTO." This provision needs to set forth what a regular basis would entail. Would a regular basis be six months, one year, or two years? The PTOS suggests that "regular basis" be defined as at least quarterly.
Further, the Advisory Board should be given oversight authority of appointments by the Commissioner/CEO. H.R. 2533 does not provide for an Advisory Board. The PTOS finds a need for more accountability than is set forth in H.R. 1659 and H.R. 2533 (the bills).
V. Role of Advisory Board : A Need for Oversight
As the name "Advisory Board" suggests, under H.R. 1659, the Board would serve in an advisory capacity. Unfortunately, "advisory capacity" means that the decisions of the Advisory Board would not be binding on the Commissioner of the PTC. In traditional corporations, corporate management and control is separate from ownership of a corporation. More specifically, the management and control of a corporation are commonly vested with a board of directors, while the ownership of a corporation is commonly vested in the hands of shareholders. The rules by which the corporation is run are generally laid out in a hierarchial fashion. At the top of the list of rules is the "corporate charter" followed by the "by-laws" of the corporation.
The current PTO system operates within the confines of a traditional government entity located within the DOC. Under a corporate charter, desired provisions of the current system could and should be maintained. Giving warranted deference to the status quo, one would think that the charter should parallel the current system except in the aspects where there is an articulable reason to change the current system. In our opinion, specific examples of where change is needed include FTE ceilings and procurement practices.
The traditional corporation consists of a board of directors with a fiduciary responsibility to the shareholders of a corporation. In a PTC, there would be no shareholders in a traditional sense of the word. It has therefore been argued that since there would be no shareholders in the PTC, then there is no need for a board of directors to represent their interests.
The PTOS, however, believes there is an interested body who could be analogized to shareholders of a PTC. To explain, the term "customer" has recently and repeatedly been used in part to represent the applicant for invention or trademark. While the term customer seems inappropriate to some who deal in the patent and trademark area, it should be remembered that in a corporate context the customer is not the primary beneficiary of a corporation. The primary beneficiaries of a corporation are indeed the shareholders. We see an analogy between such shareholders and the American public in that the American public is the true beneficiary of the patent and trademark systems in that the systems advance this Nation's technology and economy. Applying this analogy, it is reasonable to have a body of individuals who represent the interests of the American public serve as a board of directors.
A board of directors, if structured correctly, could provide such representation and would still allow management the flexibility it needs to respond to changing demands. The primary benefit of this board of directors would be to provide needed continuity and experience throughout the years in the running of the PTC. This continuity would be preserved by having members serve non-concurrent terms. With a single CEO/Commissioner and no board of directors, this continuity is simply not possible. Additionally, the board of directors could provide a very important avenue of communication to the public and bar organizations.
It is critical, however, that the board of directors' power not limit the flexibility which the Commissioner needs. While we simply are not sure of how the board of directors could exert control over the Commissioner, some suggestions are providing the board with a 2/3 override vote capability or in some other manner providing the board a mechanism by which to curb fundamentally inappropriate behavior. We would suggest that the board of directors not be mandated into making any kind of routine procedure or law such as a type of bylaw. Subjects of the board of directors' concerns could include policies, budget, appointments of officers, debt accumulation, and real estate acquisition; and fees if the Commissioner is given the authority. These are powers which the H.R. 1659 proposes the Advisory Board should deal with, but currently are now only advisory.
Ordinarily, in a corporation, the shareholders have the power to remove members of the board of directors, with or without cause. In the PTC as envisioned by H.R. 1659, there is no provision for removal of members of the Advisory Board even though such members will be appointed by the President and both houses of Congress. If the President and Congress have the power to appoint, then they should also have the power to remove. Whoever appoints, the appointing body should have the power to remove.
VI. Separation of Powers : Constitutionality of a Board
The proposed H.R. 1659 Advisory Board would have influence as a consulting body only and would have no authority over the Commissioner. Also, some members of the Advisory Board would be appointed by Congress. This is not seen to violate separation of powers in that such an Advisory Board would not exert administrative or enforcement powers. Under the PTOS advocated board of directors, however, a board of directors would replace the Advisory Board. The board of directors would have administrative and enforcement powers and thus the board members could not be appointed by Congress. Given the structure recommended by the PTOS, it would seem viable for a secretary or cabinet member to appoint the board members. A secretary working in a trade related entity would be in touch with the intellectual property community and could assist in the selection of effective board members.
As noted previously, H.R. 1659 proposes that the Commissioner be appointed for a term of six years and continue to serve until a successor is appointed and assumes office. A Commissioner may be reappointed to subsequent terms. The position of Commissioner is no longer absolutely tied to the political party of the President. While the Commissioner is still appointed by the President, the Commissioner's time of service may outlast that of the President who selected him. This increased term may lead to improved stability of PTO operational management, but may also lead to political squabbles or difficulty over policy. Imagine the situation where the Commissioner, who is now to be advisor to the President, is of one political party and is recommending changes in law or policy to the President of another political party. To preserve the advantage of increased stability and to mitigate the instability from political difficulty over policy, the operational functions could be vested in the Commissioner and the policy responsibilities vested in a cabinet member.
VII. Title 5: Civil Service Rules
While we do not want to undermine the purpose and effect of any union, we do feel it necessary to make a few comments on certain aspects of Title 5.
We appreciate the need for flexibility in management of the PTO. On the other hand, much of Title 5 would provide protections to the PTC workforce necessary for the proper functioning of the patent and trademark systems. Therefore, we believe Title 5 should apply to the PTC except where the professionalism of the patent and trademark systems is enhanced by excluding Title 5. Both the undesirable and desirable proposed exclusions to Title 5 are discussed below. We believe Title 5 or an equivalent should be kept unless otherwise stated below.
A. Undesirable Title 5 Exclusions
The PTOS believes that H.R. 1659 and H.R. 2533 propose to exclude many provisions of Title 5 which should not be excluded. The employees at the PTO stand as a fulcrum between the inventor/trademark owner and the needs of the public at large and are required to be an impartial quasi-judge in the granting of patent and trademark rights. Any change to job security that would impact impartiality would be deleterious to the patent and trademark systems because a potential conflict would arise between the need for personal security of the PTC employee and undue outside ex parte influence.
In these interests, the PTOS believes that the following provisions of Title 5 should apply to a government corporation. First, employees should only be removed for cause. Second, procedures for handling unacceptable employee behavior should involve written warnings and accusations. Third, if reductions in force are necessary, retention preferences should be in place.
1. Removal for Cause
Both H.R. 1659 and H.R. 2533 propose to eliminate provisions of Title 5 which give PTO employees job security. The bills propose to exclude the provisions of Title 5, Chapter 33 specifying that the Office of Personnel Management (OPM) sets specific guidelines concerning removal of employees. Under 5 U.S.C. 3393 of Chapter 33, there is a one-year probationary period for career and career-conditional employees. After the one-year probationary period, employees can only be dismissed for cause (as supported in Chapters 35 and 43 of Title 5). Without 3393, job security is diminished.
Employee job security should be present in the PTC. PTO employees act in a quasi-judicial capacity since they must make legal decisions on the merits of cases. Outside influences should not be able to affect removal of employees. As an example, when an overly zealous attorney threatens to complain to management, employees should have confidence in existing job security to stand behind an unpopular but correctly rendered decision. Do not sacrifice integrity for the sake of efficiency. When the integrity of the patent and trademark system is sacrificed, the only winners are litigators.
Not only is employee job security important for maintaining the integrity of the patent and trademark systems, but also employee job security facilitates recruiting and maintaining a competent workforce. For these reasons, 3393 should not be excluded from the charter of a government corporation.
2. Performance Appraisal
H.R. 1659 and H.R. 2533 propose to exclude Title 5 performance appraisal structures from the PTC. The Bills propose to exclude Title 5, Chapter 43, entitled "Performance Appraisal", which provides guidelines for dealing with unacceptable employee performance. An employer under this section is entitled to remove an employee for unacceptable performance. An employee under this section is entitled to: - 30 days advance written notice of proposed action which identifies specific instances of unacceptable performance, - be represented by an attorney or other representative, - reasonable time to answer orally and in writing, and - written decision which spells out unacceptable performance in reduction in grade or removal. The PTOS believes that it is necessary to provide specific steps for dealing with unacceptable performance. Procedures for handling unacceptable performance should involve written accusations to reduce the likelihood of arbitrary and unfair harassment. Such harassment would adversely affect the level of professionalism at the PTC. Thus, Chapter 43 should not be excluded.
3. Retention Preferences H.R. 1659 and H.R. 2533 propose to exclude provisions of Title 5 relating to retention preference during reductions in force. The bills proposes to exclude provisions of Title 5, Chapter 35, which mainly relates to reductions in force (RIFs). For a PTC to properly function in its mandate of issuing valid patents and trademarks, it is imperative that the PTC employ qualified examiners. PTO employees make a commitment to their employer by specializing in patents and trademarks. To ensure that the proposed PTC continues to benefit from the skilled judgement these experienced employees would provide to the PTC and to less experienced employees, the PTC should make a reciprocal commitment to its workforce.
Removing Chapter 35 from the Title 5 provisions allows for future removal of employees during a "slow period," without any particular retention preference. Because more experienced workers have become more specialized, these experienced workers, who have made a larger commitment, should be protected. Chapter 35 should not be excluded.
B. Desirable H.R. 1659 Title 5 Exclusion: Selection and Placement of Employees
The PTOS believes that the following provision of Title 5 should not be binding on the proposed PTC if the PTC is to adequately serve the patent and trademark community and the American public. The government corporation should not be required to follow OPM's regulations concerning selection and placement of employees.
H.R. 1659 and H.R. 2533 propose a government corporation that would not be subject to many of the regulations of OPM regarding selection and placement of employees. Both H.R. 1659 and H.R. 2533 exclude portions of Chapter 33. Chapter 33 provides some basic guidelines with respect to hiring employees including nine civil service rules, but the majority of provisions which directly relate to the employees of the PTO are left to the discretion of OPM. OPM's current hiring guidelines involve very specific procedures which are drawn to employment in any agency of the Federal Government. The complexity of these hiring procedures inhibits the PTO's recruiting efforts. While the portion of Chapter 33 which gives OPM authority to set hiring guidelines should be excluded, a minimum level of qualifications for employees should be set forth in the charter of the PTC to ensure the hiring of highly qualified personnel. Basic employee qualification guidelines are necessary to reduce the effect of patronage and promote the professionalism of the PTO.
C. Desirable H.R. 1659 Title 5 Modifications The PTOS believes that some of the Title 5 modifications proposed by H.R. 1659 and H.R. 2533 would be desirable. Maintaining retirement and insurance benefits at current levels, but allowing supplementation of these benefits would be desirable.
1. Retirement Benefits Retirement benefits are maintained at current levels, but may be increased under H.R. 1659 and H.R. 2533. Both bills require that employees receive retirement provisions subject to Chapters 83 (relating to the Civil Service Retirement System) and 84 (relating to the Federal Employees' Retirement System) of Title 5. Under both H.R. 1659 and H.R. 2533, the retirement benefits of Chapters 83 and 84 of Title 5 could be supplemented.
Using current retirement benefits to set a minimum level would facilitate a transition into a government corporation. A good retirement package is an important reason why many PTO employees chose to work for the PTO, rather than in the private sector. Allowing the Commissioner to increase retirement benefits also gives the Commissioner flexibility to raise retirement benefits if the Commissioner believes that doing so would be in the best interests of the PTC. For instance, the Commissioner could determine that a better retirement benefits package would encourage employees to stay with the PTC for their entire career.
2. Insurance Benefits Under H.R. 1659, insurance benefits must be maintained at levels at least as good as current levels. H.R. 1659 provides that officers and employees of the corporation shall remain subject to Chapters 87 (relating to life insurance) and 89 (relating to health insurance) of Title 5. These benefits, however, may be changed as long as the changes do not result in the benefits becoming, on the whole, less favorable.
If the Commissioner does change the insurance benefits, it may be difficult to measure whether the proposed benefits are less favorable. Thus, this provision of H.R. 1659 may be a source of litigation.
In contrast to H.R. 1659, H.R. 2533 maintains insurance benefits at current levels, but allows increases in insurance benefits. Under H.R. 2533, the insurance benefits of Chapters 87 and 89 of Title 5 could be supplemented. This supplementation of benefits scheme is similar to how both H.R. 1659 and H.R. 2533 handle retirement benefits.
Allowing the Commissioner to increase insurance benefits gives the Commissioner flexibility to raise insurance benefits if the Commissioner believes that doing so would be in the best interests of the PTC. Further, using current benefits to set a minimum level avoids the danger of litigation involved in H.R. 1659's language which sets forth a "on the whole, less favorable" standard.
D. Other Title 5 Exclusions Additionally, the PTOS has concerns regarding other Title 5 exclusions. Both H.R. 1659 and H.R. 2533 propose to eliminate the General Schedule (GS) system at the PTO. The bills exclude Title 5, Chapter 51, which classifies and sets forth the amount of supervision and what is to be performed for each GS level. Chapter 51 sets the following guidelines for grading employees: a) The principle of equal pay for substantially equal work will be followed. b) Variations in rates of basic pay will be in proportion to the substantial differences in difficulty, responsibility and qualification requirements. c) Individual positions will be grouped in and identified by classes and grades. Although the PTOS realizes that classes and grades inhibit flexibility, we also find a) and b) above to be important in maintaining employee morale which has a direct correlation with employee professionalism. These two principles should be preserved in the charter.
Both H.R. 1659 and H.R. 2533 propose to exclude the pay rates and schedules of Title 5. Chapter 53 of Title 5 sets the GS pay rates and schedule. By excluding Chapter 53, the bills could realize some advantages such as flexibility to set wages without prior approval from OPM. Higher wages could be offered to allow the corporation to attract and hire qualified people through competitive compensation. On the other hand, eliminating Chapter 53 means there would be no assured periodic pay raise and defined promotion times and benefits in the charter of the corporation. The PTOS finds that many employees would be demoralized/troubled by the loss of a predictable, reliable pay system. Since professionalism could suffer if the well-defined pay schedule in Chapter 53 were to be excluded, the PTOS urges the Subcommittee to weigh these competing factors carefully.
These concerns about the pay scale could be addressed in the same manner that both H.R. 1659 and H.R. 2533 approach retirement benefits. In the same way that setting a base level with added flexibility is desirable in the context of retirement benefits, maintaining the current compensation system as a base level will satisfy employees that they will not be paid less, while allowing the corporation to offer higher wages to attract and retain employees. To achieve this goal, the bills could be amended such that the PTC would remain subject to Chapter 53, except that the PTC could provide compensation to supplement the compensation otherwise provided under Chapter 53.
Even though much of Title 5 is excluded, H.R. 1659 restricts the scope of collective bargaining. H.R. 1659 proposes to retain a majority of Chapter 71 of Title 5 (relating to collective bargaining), while setting forth a number of exceptions. Specifically, H.R. 1659 proposes to exclude bargaining with respect to the establishment, implementation, amendment, or repeal of any system of classification of employees, any compensation system, any system to determine qualifications and procedures for employment, and means and methods for doing work. In contrast, H.R. 2533 retains all of Chapter 71. H.R. 2533 also establishes a joint labor-management committee to make recommendations concerning the design and implementation of any position classification system, and any system to determine the qualifications and procedures for employment, and contributions to retirement and benefits programs.
The PTOS encourages an effective partnership between labor and management. Furthermore, we would hope that this relationship be guided by the principles of professionalism in the PTC and enhancement of the American intellectual property system.
In conclusion, while an equivalent of many of the current protections of Title 5 is desirable, the rules which impose these protections can be burdensome. There is a clear distinction between having protection, and having clear rules which provide the protection. If drafting legislation to provide the desirable protection and benefits of Title 5 is impractical, then neither H.R. 1659 nor H.R. 2533 should exclude any chapters of Title 5.
Conclusion
We hope you will take into consideration all our suggestions, comments and concerns in these very important decisions. We know that you will make the best choices possible for the benefit and welfare of the entire intellectual property community.