The Next Patent Office Director …

When David Kappos left the USPTO in January 2013, I asked the question: Who will be the next USPTO director? Over the past year, no names have been brought forward or are appearing on the horizon. Thus, the question should likely be revises: Will there be a next USPTO director?

The following is a response that I recently sent to Representative Bentivolio in response to a set of Questions for the Record:

Over the past decade, Congress has been quite lax at exerting detailed oversight over the USPTO and its patent examination process. Former USPTO Director David Kappos had a strong working relationship with Congress. However, it has been more than one year since Director Kappos left the position in January 2013. As we stand now, the USPTO has been without a Senate approved Director for more than one year, and has been without even an Acting Director for the past three months. At this point, direct Congressional oversight may be the best way to push the Administration toward getting the agency quickly back on track.

A recent article by Kate Tummarello in The Hill focuses on this same point. [Link] Michelle Lee has now taken over as deputy director. However, it is unclear what level of decision making authority comes with that position.

33 thoughts on “The Next Patent Office Director …

  1. Dennis, I’m curious as to whether you (or someone you know) has any thoughts about the explanation for the delay?

    I would suggest the delay is due to a number of factors including (1) a reasonable belief it doesn’t really matter much to the “big picture” as the people being directly served by the patent office in its “Official Director”-less state are economically much, much, much better off than nearly everyone else in the country; (2) typical beltway desire to do the impossible, i.e., find a person who will please everyone but who will also do his/her part to rein in the madness in the softie woftie arts; (3) no sane person wants to do the cat-herding required to of clean up the mess left by Kappos and also deal with lunatic patent teabaggers screaming “Dudas Era!!!! Dudas Era!!!!” in his/her face 24 hours a day; and (4) political coverage re Gil Hyatt’s applications needs to be negotiated.

    1. (1) “reasonable” belief meet legal requirements.
      (2) mindless claptrap of softie-woftie ad hominem
      (3) more mindless claptrap as to “mess” left by Kappos; who, for all sane individuals, would hold that Kappos performed far better than any other director in the modern era.
      (4) mindless non sequitur.

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        1. Did I indicate that I would have an explanation for the delay?

          No.

          Does it matter to my post showing that your post at 6:03 was CRP?

          No.

          Thanks for playing that ‘fun game.’

          1. my post showing that your post at 6:03 was CRP?

            In fact, your post was crp. Fun game.

            Did I indicate that I would have an explanation for the delay?

            No. Do you actually have one? Or do you just like to write stuff like your post is crp” then slink away like a lizard back under your slimy rock?

            all sane individuals, would hold that Kappos performed far better than any other director in the modern era

            LOL. David Kappos called. He says he really likes it when you polish his shiny, multi-millionaire, design-patent luvvin’ head.

            (4) mindless non sequitur.

            Gil Hyatt is a “non-sequitur” when it comes to decision-making by the PTO director? Huh. I wonder what Gil Hyatt thinks about that.

  2. >January 2014 saw the lowest monthly total of patent filings in U.S. district courts >in more than two years, according to a Tuesday blog post from Lex Machina, and >the company is still looking at trends to figure out why.

    How can this be? The trolls must be in retreat or gathering to launch an all out assault on all that is holy.

    1. Who knows? Maybe they’re starting to wise up a bit. Or maybe it’s just a fluke. Or perhaps it has something to do with the horrible weather keeping people out of the courthouse.

    2. January 2014 saw the lowest monthly total of patent filings in U.S. district courts >in more than two years, according to a Tuesday blog post from Lex Machina, and the company is still looking at trends to figure out why.

      At this point, it looks like statistical garbage.

      link to lexmachina.com

      This total represents a sharp drop in total filings, both when compared to the prior month of December, 2013 (427)

      Right — December 2013, a relatively high rate, which was nevertheless preceded by the second highest rate of monthly patent lawsuit filings ever recorded.

      The average number of filings/month over the last two months (~375) is still nearly twice that of the average monthly filing during the period 2007-2011 (~225), before the rates spiked up.

      I’m not drawing any conclusions here, other than this January rate doesn’t look like anything more than a meaningless blip at this point.

        1. And a good thing at that.

          You’re on a roll today, Tr0llboy, with your usual drive-by nonsense. Please keep it up!

          I was really glad to see that you voluntarily admitted that you’re an idi0t. At least we can get past that point of discussion now.

          1. Once again, Malcolm a world of difference in you making something up whole cloth about “what I said” and my observation of the plain facts about what you have said.

            Do I need to post the definition of dissembling again for you to realize that you are dissembling again?

            1. you making something up whole cloth

              Like you voluntarily admitting that you’re an idi0t?

              I didn’t make that up. It actually happened. How do I know that? Just “my observation of the plain facts”.

              Do I need to post the definition of dissembling again

              Go ahead, nutcase. Whatever turns your nutcase crank.

  3. Michelle Lee’s indomitable experience makes her the right person to deal with the issues such as backlog of unexamined patents and patent quality at USPTO. She has successfully served as the deputy general counsel and head of patents and patent strategy at Google before taking up this new role at USPTO. So, we think that the administration of USPTO is in the right hands till the new head is engaged to take the place of former Director, Mr. Kappos.

    1. Sagacious, you might be right about Michelle Lee, but I know little about her except that she seems a have good credentials. That she worked for Google does not give a lot of people a warm and fuzzy while it gives other people hope.

      Moreover, she left Google months prior to accepting her position as Silicon Valley director. What was going on?

      Furthermore, what do we want in a director? A good administrator? Or do we want somebody that recognizes that the patent office is not doing a good job and issues far too many patents that are not properly prosecuted. Reducing the backlog is important only in a marginal sense in comparison to the problem of the patent office doing horrible job in examining.

        1. How do you feel about “Quality = Reject”…?

          Yes, Ned, please tell everyone how you feel about a statement that nobody ever made but anon really really likes to pretend that someone made.

          Then, Ned, you can tell everyone how you feel about “quality = rejecting obvious, non-enabled and ineligible junk patents and tightening the screws on the examination of claims relying heavily on functional language, particularly the computer arts where trolling/grifting is easy and attractive to a certain type of PTO customer”.

          1. LOL – what pitiful tr011ing, Malcolm.

            Nobody had to explicitly say the exact words of “Quality = Reject” – all you had to do is note that the Allowance Rate Cliff graph was touted as evidence of the Office ‘Quality.’

            AND

            Kappos really did come in and in one of his very first addresses to the Office folk did say that Quality does not equal Reject.

            So with these things firmly understood, there is one more question: Do you enjoy being such a putz?

        2. Anon, if one is placed in charge of an agency that is issuing large numbers of patents that are not valid for one reason or another and are causing substantial harm to the American economy, what is one to do on a short-term basis to slow down the problem while fixes can be put in the place? I don’t know the right answer to this question, but I think the director’s heart was in the right place.

          1. I could not disagree with you more Ned that the ends you speak of would justify a means of rubber stamping Reject Reject Reject.

            As I have mentioned, this unilateral Reject mode – regardless of merit – has resulted in the current stacks of deck chairs across the board at the Office (Appeals queue, RCE Queue, started but unfinished examination queue).

            Further, there is NO evidence of the gravity that you wish to attribute (your comment of “causing substantial harm to the American economy“). You are mindlessly parroting a mantra that merely ‘sounds good.’ Again – keep in mind the GAO report. Keep in mind a properly normed (litigation against all active patents) and AIA-adjusted litigation rates. Put that glass of koolaid down.

            1. Keep in mind a properly normed (litigation against all active patents)

              Why is that the “proper norming”?

              If the PTO issues 1 million patents a year next year and the litigation rates spike up proportionally, are you suggesting that everyone should just relax and have fun because “it’s the proper norm”?

              Step out of your bubble occasionally. We know that you have few friends in the “real world”. But the nice nurse down the hall can probably hook you up with some bingo buddies to talk to.

            2. Malcolm whiffs with “If the PTO issues 1 million patents a year next year and the litigation rates spike up proportionally, are you suggesting that everyone should just relax and have fun because “it’s the proper norm”?

              Absolutely. Think of the rate of non-litigated innovations promoted by the scenario you present.

              You really love to do that self-FAIL thing, don’t you?

      1. Hi Ned,
        Thanks for your response! It is very much appreciated. You are right in having said that USPTO is faced with many persistent problems apart from the backlog issues and it needs a good administrator to head the organization. But Michelle must be given some time before it is judged that she is not good in her administrative role. And in case she doesn’t stand up to expectations of US people, there’s always room for appointment of a new Director, isn’t it?

        1. Further to my last post, I think Dir. Dudas greatest mistake is the same mistake now being made by semi-director Lee, trying to implement by rule substantive changes that have the force of law. Dudas should have gone to Congress where the legislative process would’ve taken place and that would’ve engaged substantial debate over the years until a consensus was reached. What he did was fundamentally incorrect in proposing the rules package and then ignoring our protests.

          The Dudas regime will be remembered as perhaps the worst in history not because of his effort to control quality but because of his arrogance.

          In the same vein, semi-director Lee is off to a very bad start.

  4. Given the reality of partisan obstructionism in the Senate I would think that it would be a lot harder to find candidates who would would with the nonsense. It could very easily be the case that the confirmation process could get held up for 1 year or more because some Senator wants “answers on Benghazi”.

  5. Former USPTO Director David Kappos had a strong working relationship with Congress.

    Was it stronger than Gil Hyatt’s relationship?

    1. LOL

      When the exact same sentiments were raised in an earlier thread (in a post that I provided relating to what my pal Hal had to say), Malcolm went on the attack and attacked Hal’s character and motives.

      Here, Prof. Crouch posts a similar message, and all Malcolm does is post a silly non sequitur.

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  6. The linked article suggests that the Obama administration is looking for someone to better represent the interests of Silicon Valley. I am not quite certain what that means. Silicon Valley is the home of the startup and of big business like Intel and Google. Their interests clash.

    The law firm that is most identified with the startup here in Silicon Valley is Wilson Sonsini Goodrich & Rosati. It would be nice if the new director came from that firm or from one of its offshoots.

  7. Dennis, good that you are following up on this.

    In 1870, Congress provided that there be a Commissioner, an Assistant Commissioner and three Examiners-in-Chief all to be appointed by the president with the consent of the Senate.

    In the mid-90s, Bruce Lehman lobbied that the office of Commissioner be elevated to the undersecretary of commerce level so that the patent Commissioner might have more say in the intellectual property policy. That was done with the creation of the office of Director.

    Recently, Hal Wegner reviewed the officers who were entitled to act in the absence of the secretary of commerce. While there are quite a few officers listed, including officers less than undersecretaries, the undersecretary for intellectual property was not listed.

    Now we have the secretary commerce appointing a deputy rather than the president appointing a director. The difference between the two is that a presidential appointment has to be approved by the Senate. It is noted that the secretary commerce also appoints the patent Commissioner and the trademark Commissioner.

    Add to the above that the deputy is issuing policy statements as if she were the director.

    If the above discloses a pattern, the pattern appears to be that the patent office is intended to be fully subordinate to the secretary of commerce and is no longer to be a position appointed by the president. This would be a significant step down for the patent office.

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