USPTO Deputy Commissioner Provides Deeper Context on FY26 Examiner PAP
Aligning Goals or Pressuring POPA?
Following the USPTO’s initial presentation on its Fiscal Year 2026 (FY26) Performance Appraisal Plan (PAP), Deputy Commissioner for Patents, Jerry Lorengo, joined the Clause 8 podcast with Eli Mazour to provide significant new context, clarifications, and the administration’s reasoning behind the new standards.
While the initial webinar outlined what was changing, the podcast discussion offered a candid look at why, directly addressing the examiner backlog and some of the human impact of the new production requirements.
The “Why”: Backlog and Maximizing Capacity
Mr. Lorengo directly linked the new PAP standards to the agency’s high-level goals for pendency and the unexamined inventory. The new plan is intended to “really [align] the expectation and goals that we have as an office, specifically focusing on pendency, [and] our unexamined inventory,” Lorengo stated.
He explained the goal is to “maximize their capacity to examine work” and that “we are setting production targets that actually get us there.”
Lorengo also offered a perspective on the difficulty of these changes. “The amount of work, the minimum amount of work an examiner has to produce changes never easy,” he said. “The examination job is incredibly hard... It can be intellectually taxing.”
He noted the 5% increase for a “Fully Successful” rating (from 95% to 100%) “can upset [] a person personally, but also professionally, and it’s going to take a while for people to kind of get into it.”
Major Clarification on Streamlined Review
The podcast provided a critical clarification on the new streamlined review process for senior examiners. The initial USPTO Hour presentation indicated reviews would cover “all independent claims and any dependent claims indicated as allowable” (p. 31, USPTO Hour slide).
Mr. Lorengo revealed this policy has already been revised. “We did change that,” he stated on the podcast. “We decided that it’s more effective to focus on the independent claims and not do the dependent claims indicated allowable.”
This change significantly narrows the scope of the new review process. Lorengo also framed the review’s purpose as collaborative, not purely punitive. He described it as an “opportunity for our supervisors to understand the prosecution at the earliest points” and to identify “what’s really working well... that you want to show as a best practice and have other examiners emulate.”
“Entirely Different” from Second Pair of Eyes
Addressing community concerns, Lorengo drew a sharp distinction between this new front-end review and the controversial “Second Pair of Eyes” (SPRE) program.
He described SPRE as “way late in the prosecution” at a point where “expectations that are settled are unsettled.” By contrast, the new streamlined review is “entirely different,” serving as a “checkpoint” on the “first office action on the merits” to ensure “things are going in the right direction.”
The “Clear Error” Standard Defined
When asked what constitutes a “clear error” under the new plan, Lorengo read directly from the PAP definition. He emphasized that the standard is not meant to punish reasonable differences in judgment.
“A clear error is not an honest and legitimate difference of opinion as to what actions should have been taken,” he read. “If the action taken is reasonable and the action preferred by the speed is reasonable, this constitutes an honest and legitimate difference.” He also confirmed there is no quota for supervisors to find errors.
The New Interview Policy: Curbing Outliers, Not Collaboration
Mr. Lorengo also explained the reasoning behind the new interview attribute time, which provides one hour automatically per round of prosecution, with subsequent time requiring SPE approval.
The change, he explained, was not to discourage interviews but to address specific outliers. “We were seeing some outliers where there was interviews were happening every, like I’m going to call in them and make a change to a period,” he said.
He strongly encouraged applicants to continue seeking interviews: “Always call the examiner for an interview.”
For practitioners, he offered clear advice on how to make the process smoother: “A really good agenda from the attorney” is the key information an examiner needs to justify the time to their supervisor.
He was equally clear in his expectations for supervisors: “Supervisors should approach that and be reasonable... in general should be saying yes.”
Analysis: Stated Rationale vs. A Workforce in Crisis
Stated Benefits:
The clarification that streamlined review will only focus on independent claims is a significant revision, making the new oversight less burdensome than initially feared.
Mr. Lorengo’s direct policy statement that SPEs “in general should be saying yes” to reasonable requests for more interview time is a strong signal that collaboration remains an official priority.
The official explanation of the “why” behind the PAP—linking it to the backlog and outlier behavior—provides the administration’s narrative for the IP community.
Challenges and New Burdens:
The core challenge remains the 100% production standard. While the administration acknowledges this pressure, it is being applied at the worst possible time, creating a high-pressure environment for an already distressed workforce.
The “extra step” for an examiner to ask an SPE for interview time remains a point of friction. Given the broader context, it’s difficult not to be skeptical. This step could easily be (and may be intended to be) used as an improper gate, despite official assurances.
The PPH count reduction (from 2.0 to 1.5) still places a new burden on examiners, though Lorengo did note that they “can always reach out to their supervisor for additional non-production time on a case-by-case basis.”
Context: The PAP in Light of the Union’s Disbandment
This PAP cannot be viewed in isolation. It is a secondary pressure point in a much larger concern. On Thursday, August 28, 2025, an Executive Order was issued that effectively disbanded the Patent Office Professional Association (POPA), the union representing patent examiners.
The order’s “national security” justification is viewed by most observers as a transparent pretext for breaking the union and eliminating its negotiated right to remote work. The most immediate implication is a direct threat to the USPTO’s popular remote work program.
Should the courts uphold the E.O., a mass resignation of experienced examiners is not merely “widely expected”; it is the logical and unavoidable outcome.
These new PAP rules, imposed at this exact moment, therefore appear less like a good-faith effort to manage the backlog and more like a component of a deliberate, high-pressure strategy against the examining corps itself. Time will tell.
Conclusion
The always-informative “Clause 8” podcast (Apple, YouTube) discussion adds crucial color and context to the FY26 PAP changes.
Mr. Lorengo’s good-faith clarifications, while noteworthy, likely do little to calm the much larger anxieties stemming from the Executive Order. The administration’s “sympathy” for the “incredibly hard” job of examiners is difficult to reconcile with actions that seem designed to dismantle their union and threaten their livelihoods.
The focus now shifts from policy to survival. Practitioners and examiners are watching, but with deep skepticism, to see if the “reasonable” and “collaborative” approach described by Mr. Lorengo is even possible in an agency now defined by such profound turmoil.
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