Like most patent practitioners, I am very pleased with President Obama’s recent nomination of a new Undersecretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office (USPTO). The nominee is David Kappos, vice president and assistant general counsel for intellectual property at IBM. Kappos has over 20 years of intellectual property experience and manages IBM’s patent and trademark portfolios. Worth noting is that each year, IBM obtains more U.S. patents than nearly any other company.
In Kappos’s capacity as VP and assistant general counsel for IP at IBM, his views on many substantive patent law issues are well known. For example, he is not a fan of pure business method patents (preferring, for example, the machine-or-transformation test). He also generally supports harmonization efforts, including “opposition-like” post-grant review procedures. His opinions on such issues have been praised by many and criticized by some. Interestingly, some have also criticized his nomination for not emphasizing his potential to fix various problems of the USPTO, but instead focusing on his knowledge of the patent system in general.
I, on the other hand, am relieved that his nomination has been surrounded by discussions of his general knowledge of the patent system.
If the opposite were true and Kappos’s nomination was overwhelmed by discussions of plans that detailed exactly how he will fix the USPTO, I would be greatly concerned. How is he supposed to know how to suitably resolve these issues before having an intimate knowledge of the organization from within?
Notwithstanding this, there are certainly clues regarding what aspects or procedures of the USPTO that Kappos may tinker with or try to fix. For example, like the rest of the patent bar, Kappos finds the backlog of patent applications and corresponding pendency time before first actions on the merits to be unacceptably long. He has publicly voiced that the USPTO desperately needs an information technology system overhaul to help increase examining efficiency and (hopefully) reduce the backlog and pendency times. Increasing USPTO efficiency alone would be a welcome change.
I am very much looking forward to having a Director with substantial practical knowledge of, and appreciation for, the patent system.