By Dennis Crouch
David Kappos has been an instrumental leader in patent reform over the past several years. In the lead-up to the America Invents Act of 2011, it was Kappos – acting then in his role as USPTO Director – who serve as a trusted advisor to leaders on the Hill who were developing appropriate statutory language. In 2014, Kappos – now acting as an industry lobbyist in private practice – spearheaded a successful initiative to table further patent reforms for now.
Although now an outsider, Kappos’ influence remained so strong in the 2014 cycle because the USPTO Director hole that he left is still empty. Rather, that slot has remained vacant since Kappos left the job more than a year ago. During that time, White House has not stepped forward with a nomination for the next director. I would argue that the failure of the 2014 reforms was more about the lack of a USPTO Director guiding the changes than about the challenge brought by Mr. Kappos.
In a new letter to President Obama, Senator Hatch calls for movement:
June 2, 2014
Dear President Obama:
I write concerning the director vacancy at the U.S. Patent and Trademark Office (USPTO). Since the departure of Director David Kappos in January 2013, the USPTO has been without a permanent director. This vacancy, which has gone unfilled for over sixteen months and counting without so much as a statement from the White House, hampers the agency’s ability to influence policy and make long-term plans. We all can agree that these are challenging times that demand strong leadership at the USPTO to fuel our nation’s economic strength by harnessing our intellectual property capital.
By all accounts Deputy Director Michelle Lee has done an admirable job juggling the functions and duties of both director and deputy director. But this arrangement simply cannot continue. Without a director backed by a presidential nomination and Senate confirmation, the USPTO does not have a leader who can engage in the type of strategic and long-term planning that is crucial for ensuring the USPTO’s continued effectiveness.
Ms. Lee’s ability to take on major or controversial challenges is further limited by legitimate questions as to whether her appointment as Deputy Director was consistent with 35 U.S.C. § 3(b)(1). I hope that you did not casually disregard the clear statutory requirement that the deputy director be nominated by the director. In any case, the question underscores that Ms. Lee does not possess the same clear mandate as would a presidentially-nominated and Senate-confirmed director. Leaving Ms. Lee to shoulder the burden of USPTO leadership alone is unfair, untenable, and unacceptable for our country’s intellectual property agency.
The USPTO is forging ahead with important initiatives like opening satellite offices across the country and implementing post-grant review programs under the America Invents Act. And while the agency has reduced its backlog of patent applications in recent years, as of April 2014, there were still 619,204 unexamined patent applications. These are just a few of the challenges and opportunities facing the USPTO that are needlessly complicated by the absence of a director to provide a forward-looking vision.
When one considers what intellectual property means to our economy, the failure to put in place a strong leadership team at the USPTO is unfathomable. Effective leadership requires a director, deputy director, and their assembled team. Leaving the agency without a permanent director for nearly a year and a half without so much as a public explanation is inexcusable. I look forward to hearing your plans with regard to this vacancy, and I urge you to take prompt action to nominate a USPTO director. We cannot afford to wait any longer.
The White House is unlikely to respond publicly to this message, but will perhaps take some action before the 2016 presidential election.