PTO Deputy Director: Sharon Barner

The USPTO has announced that Sharon Barner of Foley & Lardner has agreed to become Deputy Director of the USPTO. Barner is the head of Foley’s large IP department and has been a supporter of Obama since his youthful days in the Illinois legislature. As was the case with Kappos, Barner will be taking an extreme pay cut, opening herself to public criticism; and moving to DC. She should be applauded for her willingness to become a public servant. Under the law, the USPTO Director has the power to nominate his Deputy, but the actual appointment is done by the Secretary of Commerce (Locke).

The patent office has substantial problems that need to be addressed and that would be addressed regardless of who is in charge at the PTO. The benefit of Kappos & Barner is that have decades of patent law experience and are both committed to building a better patent system for the long-term. They understand how patents are actually used and the motivation behind patentee actions. Hopefully, this means that the eventual changes to the system will be more successful; have fewer unintended consequences; and be less likely to unduly antagonize those already invested in the system.

Barner was on my (rather long) short-list of potential Federal Circuit nominees to replace Judge Schall who is moving to Senior Status next week. Many members of the patent litigation bar are calling for a district court judge to be nominated. Judge Kathleen O’Malley (N.D. Ohio) likely tops the list along with Judge Patti Saris (D.Mass.).


36 thoughts on “PTO Deputy Director: Sharon Barner

  1. 36

    “It seems the requirements they are looking for is (1) Obama supporter, (2) Connected to large donations to Obama’s administrations, and (3) some logical connection to patents. . .”

    Substitute any gov’t official that can appoint people for the word “Obama”. Substitute any subject area for the word “patent”. You now have the formula FOR EVERY POLITICAL APPOINTMENT EVER MADE.

  2. 35

    link to jsonline.com

    From the article: “Barner plans to “telecommute” and work from Chicago without moving to Washington”

    Is this true? Is she going to telecommute to DC and live in Chicago?

    I wonder if she is going to be required report to Alexandria every bi-week.

  3. 34

    Don’t be so modest Jed. Would you not actually get much higher quality results, by assiduous deployment of your brilliantly persuasive lawyerly powers of argument, on impressionable people who are by their very nature charmingly anxious to please you?

  4. 33

    “I think we should appoint hot model chicks to these positions. it would be good for the patent community as a whole.”

    This is the most sensible post of all. The hot model chicks would have the same amount of prosecution experience and understand patent prosecution about as well; but, at least those of us who interact with them would enjoy the process much more and get about the same result.

  5. 32

    JP,

    Please be honest. Does Foley really have “a lot” of patent ligigation these days?

    And didn’t her hiring of the former Director Dud raise an eyebrow with the partnership?

    Plus, if Dr. Patent is correct and Ms. Barner is an undergrad psychology degree holder, she could not even sit for the patent bar, and in any case please don’t imply that someone having her pre-pcr-generation education understands biotech.

  6. 31

    JP,

    Please be honest. Does Foley really have “a lot” of patent ligigation these days?

    And didn’t her hiring of the former Director Dud raise an eyebrow with the partnership?

    Plus, if Dr. Patent is correct and Ms. Barner is an undergrad psychology degree holder, she could not even sit for the patent bar, and in any case please don’t imply that someone having her pre-pcr-generation education understands biotech.

  7. 30

    I think we should appoint hot model chicks to these positions. it would be good for the patent community as a whole.

  8. 29

    I was Sharon Barner’s partner for seven years, in two different firms, in those firms’ Chicago office.

    She has a lot of patent litigation experience, particularly in biotech cases. She has little or no patent prosecution experience of which I am aware. Lately she has become very active in the AIPLA.

    I am a little surprised by this career move. Sharon would make a better federal judge, or more particularly a CAFC appellate judge, than she would a USPTO administrator. Maybe she’ll do one of those two jobs later? In particular a USPTO stint could polish her resume for the CAFC. She has to be crowding 60 these days, so I doubt she is returning to private practice.

  9. 27

    Has anyone in the mangagement team ever represented one of the little guys? This is an important point.

    For example Kappos plan to let those who abandon one application forward another application only helps those who can afford multiple applications will be able to take advantage of the program. Someone who has lots of money can simply file two applications every time they would have filed one and for the price of $500 get a ticket to advance some future application. But what do the little guys who can’t afford this luxury get?

    Thank you for letting me know that at least Kappos has some experience prosecuting patents. That does make me feel somewhat better.

  10. 26

    All other things being equal, would I prefer someone with prep/pros experience? Sure. Even so, it’s hard to complain about someone who (a) has been involved in the patent world from the litigation side and (b) has demonstrated management skills as the head of the IP department in a multinational law firm. Sharon Barner understands the value of patents far better than Maggie Peterlin or Jon Dudas (even if her firm was dumb enough to hire the latter, but it’s pretty clear that was simply a marketing ploy; and anyway, *somebody* had to hire him if only to get him out of the PTO).

    As to “PTO lifers” having their new bosses around their fingers: maybe it’s time some of those lifers got some real world experience and learned about how asinine OAs result in innocent applicants wasting large chunks of change and loss of incentive for investors to invest in emerging and developing technologies.

  11. 24

    I fear for the future of humanity. No one in upper management at the PTO appears to have commented at Patently-O to trash the PTO management, the continuation rules, Prof. Rai, Judge Moore, corporations, the eBay decision, filing fees, Cisco, parking laws, Kanye West, or people without prosecution experience.

    I, for one, would assume that not having that experience would be a dealbreaker, but apparently the Obama Administration has lower standards than I do and holds the patent system in low regard.

  12. 23

    Ms. Barner is the subject of a pending motion for sanctions in the Western District of Texas, case no. 1:04-cv-352. See docket number 339 therein. The allegation is that she and her firm deliberately and repeatedly violated the terms of the protective order therein.

  13. 21

    “Well, it’s probably better than the last crew, but I can name 10 people off of the top of my head that have Examiner experience, private practice experience, due diligence/purchase experience, and litigation experience.”

    And your complaint is that Kappos didn’t ask you to provide 10 names off of the top of your head?

  14. 20

    Well, it’s probably better than the last crew, but I can name 10 people off of the top of my head that have Examiner experience, private practice experience, due diligence/purchase experience, and litigation experience.

    Why not someone who has been all the way around the block?

  15. 19

    Good comment EG. Don’t we all (including the prosecutors) wish that troglodyte prosecutors would get out a bit, and acquire experience in the real world of patent litigation, seeing at first hand the pollution that results from their subterranean efforts?

    BTW, I thought the boss was called the “Commissioner”. Is “Director” a more recent title for an old job?

  16. 17

    “has been a supporter of Obama”

    mmmmm mmmmmm mmmmm there goes our patent system…

  17. 15

    “She is not a patent attorney as far as I can tell. As far as I can tell, she has no prosecution experience.”

    But unlike Margaret Peterlin before her, Ms. Barner has “real world” IP experience, including patent litigation experience. (Her bio on Foley makes that abundantly clear.) That’s good enough minimum qualifications in my book for her being the Deputy Director, and far beyond what Rogan and Dudas had as the Director.

  18. 14

    The government is only as corrupt as you want it to be. Vote bad people out of ofice whether their in your party or not, and better yet, vote third party if they better line up with your principles.

  19. 13

    The career bureaucrats at the PTO have to be jumping with joy. I think they were worried that the Obama administration was serious about reforming the PTO. This appointment confirms that it was all just rhetorical fluff. The PTO lifers are going run circles around the appointed management team.

    Kappos’ entire career was spent at IBM. It’s not apparent that he has ever actually practiced before the PTO, as opposed to “managing” outside counsel. There are 60 issued patents on which he is listed as the attorney. The earliest patents were filed in about 1993, and the latest patents were filed in about 1997. So being charitable we can state that Kappos practiced in front of the PTO for 4-5 years, 12-15 years ago.

    Barner: not a patent lawyer, no experience practicing at the PTO, has probably never spoken to an examiner, probably wouldn’t know a restriction requirement if it bit her in the a**. What a joke.

    Yes, this is the Dream Team, at least from the perspective of PTO management lifers. They’ll be belly bucking one another in the coffee room Monday morning.

  20. 12

    @ KD & patent leather –

    A registered attorney/agent becomes “administratively inactive” when they come to work at the Office. Likewise, if you are an examiner and pass the test, you get a number and the certificate, but they dont publish your name on the “outside” website. Internally, everyone at the office has access to the registration roll which lists people as active, administratively inactive, etc. I’m not sure if anyone in the past prosecuted cases they were examining, but clearly that’s what this “administratively inactive” business seeks to prohibit.

    Kappos is registered, but administratively inactive.

  21. 11

    KD: “I didn’t realize that Kappos was not registered to practice before the PTO. But I checked and it is true!”

    Kappos was indeed registered to practice at the USPTO at one point, see link to patentbuddy.com

    I would assume he had to surrender his reg # when he was sworn in.

  22. 10

    The patent system and the American government are corrupt and this appointment does not suprise me.

  23. 9

    I didn’t realize that Kappos was not registered to practice before the PTO. But I checked and it is true!

    No one who has actually prosecuted patents.
    No one who has represented the small guys.

    Does anyone know if anyone at the top level was an examiner? I doubt it.

    It seems the requirements they are looking for is (1) Obama supporter, (2) Connected to large donations to Obama’s administrations, and (3) some logical connection to patents (I am pleased that both Barron and Kappos do have years of experience relating to patents). I just want to know if there is anyone who met (1) and (2) who also had experience helping the little guys and prosecuting experience.

  24. 8

    It would’ve been nice to have at least one person at the top level who was registered to practice before the PTO…Barner fails that requirement

  25. 6

    She is not a patent attorney as far as I can tell. As far as I can tell, she has no prosecution experience. She represents only the big guy. I’m worried for the little guys.

    Kappos’ ideas so far seems to be either leaning towards the big guy or (maybe) neutral. Abandoning a patent for another one to be advanced will only help those with enough money to file patents that they are willing to abandon – and most little guys don’t have multiples pending at all. I’m not sure about the count system. I’ll have to think about it and see how it is implemented.

    I want to think that Obama, Kappos, and Barron are going to help the patent system, but so far I’m not convinced.

  26. 5

    “As was the case with Kappos, Barner will be taking an extreme pay cut, opening herself to public criticism; and moving to DC. She should be applauded for her willingness to become a public servant.”

    Yes – she’s a real modern-day Mother Theresa.

  27. 4

    “As was the case with Kappos, Barner will be taking an extreme pay cut, opening herself to public criticism; and moving to DC. She should be applauded for her willingness to become a public servant.”

    Why conclude that she is sacrificing herself for the public? People often choose power and prestige over dollars and cents.

  28. 3

    “Barner was on my (rather long) short-list of potential Federal Circuit nominees to replace Judge Schall who is moving to Senior Status next week.”

    Don’t knock her out of the running quite yet. There are still quite a few vacancies in the other federal circuits, and Obama is moving at a snail’s pace to fill them. Give it a year or two. By then, Obama should be ready to nominate Judge Schall’s position.

  29. 2

    Wait a minute . . . didn’t the last Director of the USPTO land at Foley Lardner? Could Foley Lardner become the Goldman Sachs of the IP world? Only time will tell :)

  30. 1

    “Many members of the patent litigation bar are calling for a district court judge to be nominated. Judge Kathleen O’Malley (N.D. Ohio) likely tops the list along with Judge Patti Saris (D.Mass.).”

    My vote would be for any of the current or former district court judges from Delaware.

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