As we continue to wait for President Barack Obama to select the next Undersecretary of Commerce for Intellectual Property (a.k.a. the Director of the USPTO), I feel compelled to make yet another nomination. As some may know, since September 2008, I have periodically nominated various people who I thought would make a good choice for the next PTO Director, including (in no particular order) Stephen Kunin, Gary Griswold, Judge Pauline Newman and Paul Kaminiski. I have even written at times about how I would really like to see Randall Rader, a distinguished member of the United States Court of Appeals for the Federal Circuit, become the next PTO Director, but discounted that because he was needed far to much on the Federal Circuit. With the issues facing the Patent Office and our patent system Judge Rader may be one of the few who can realistically turn things around and get us moving in the right direction again.
In recent weeks I have started to wonder whether Judge Rader is really needed on the Federal Circuit though. He, along with Judge Newman, has repeatedly been the voice of common sense, and shows a true and complete understanding of patent law and the U.S. patent system. In the wake of the extremely disappointing decision relating to the GSK/Tafas challenge to the final rules on claims and continuations, a decision Judge Rader filed a dissent in, I started to seriously question whether Judge Rader can do anything other than dissent in important cases. Can he really bring sanity back to patent law while possessing only a single vote on the Federal Circuit? I am afraid that would be an uphill battle. Therefore, without further ado, I nominate the Honorable Randall R. Rader to be the next Director of the United States Patent and Trademark Office.
Judge Rader obtained a B.A. in English from Brigham Young University in 1974 and a J.D. from George Washington University in 1978. President George H. W. Bush appointed him to the U.S. Claims Court in 1989, and served on that court until his appointment to the Federal Circuit in 1990. Prior to his appointment, Judge Rader served as Minority Chief Counsel to the Senate Committee on the Judiciary, Subcommittee on Patents, Trademarks, and Copyrights. He also served as General Counsel and Chief of the Senate Committee on the Judiciary’s Subcommittee on the Constitution, and as Counsel in the House of Representatives. Judge Rader has taught Patent Law at the University of Virginia School of Law and at the George Washington University National Law Center, and Comparative Patent Law at Georgetown University Law Center. Judge Rader is a co-author of a casebook entitled Patent Law, first published by West Publishing in 1998, which incidentally is the casebook I have always used when teaching Patent Law myself.
While there may be individuals who possess equal knowledge relating to patent law and the U.S. patent system, it is fair to say that there are none who possess greater knowledge than Judge Rader. Judge Rader served the Senate Judiciary Committee during the time that the Federal Circuit was created by Congress, so in addition to being intimately familiar with patent law he is also intimately familiar with the politics of patent law.
For some time I have been writing that it will be absolutely critical for the next Director of the PTO to not only have wide ranging patent experience, but to also possess a certain gravitas necessary to command respect. The next Director of the PTO will be facing monumental issues and absolutely must have the ability to speak directly and frankly with Congress and be taken seriously. The next Director must be intimately familiar with the patent application and prosecution process. The next Director must understand the value of patents and how they are used, and often compromised, during litigation. On all of these issues Judge Rader fits the bill and then some. He would make an excellent choice by President Obama.
As with the others who I have nominated, I have had no contact with them prior to making my pitch for them to be considered. I don’t know that Judge Rader would be interested, and he is not being mentioned on any of the short lists you hear about, but there is nothing wrong with hoping, right?