Earlier today the Senate Judiciary Committee voted to advance the nomination of David Kappos, former Vice President and Assistant General Counsel for IBM, to be Undersecretary of Commerce for Intellectual Property, a job that also comes with the title of Director of the Patent and Trademark Office. The vote in the Judiciary Committee was unanimous, with all Democrats and Republicans present voting in the affirmative. The hearing was held beginning at 10:00am this morning, with Judiciary Committee Chair, Senator Patrick Leahy (D-VT) stalling so he could get a quorum necessary for a vote. Leahy began talking about an early morning ( 2:00am) filibuster. Leahy said that he would applaud the late arrival of Senators if that would help convince them to arrive for purpose of the vote. Leahy’s story, which really didn’t make much sense, ended and Leahy said “that has got to be 2 more Senators to show up.” Apparently, an Intelligence Committee meeting ran late, causing some Senators to be late arrivals. Leahy kept saying “there has to be 2 more people around.” Another story ensued, once again about a Sergeant at Arms, and eventually Senator Schumer appeared, leaving the necessary number of Senators for a quorum down to 1. Then Senator Leahy seemingly started quoted Grateful Dead songs, stalling further. Then Leahy suggested that he would continue quoting Grateful Dead songs, but he feared losing Senators present, making the reaching of a quorum more unlikely.
Eventually, the stalling worked, with a quorum being reached with the arrival of several Senators. In addition to Senator Leahy, present were Senators Sessions(R-AL), Colburn (r-OK), Kaufman (D-DE), Klobuchar (D-MN), Whitehouse (D-RI), Cardin (D-MD), Durbin (D-IL), Schumer (D-NY), Feingold (D-WI) and Feinstein (D-CA). Senator Leahy asked that all pending nominations be considered en banc. The nominations considered en banc and forwarded to the full Senate based on a joint, unanimous, voice vote were:
- David J. Kappos to be Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office
- Steven Michael Dettelbach to be United States Attorney for the Northern District of Ohio
- Carter Mitchell Stewart to be United States Attorney for the Southern District of Ohio
- David Edward Demag to be United States Marshal for the District of Vermont
Senator Leahy then expressed appreciation to the members of the Judiciary Committee and said this being done he would see the Senators in September after the Congressional summer recess. He then caught himself and said: “actually, drop by this afternoon. We will have a vote on a Supreme Court nomination.” Those in attendance chuckled. Of course, Judge Sotomayor was confirmed by the full Senate in a 68-31 vote.
With the Senate closing business this evening without voting on David Kappos’ nomination, the earliest Kappos will become Director of the USPTO is September 8, 2009, which is the first business day post Labor Day. Hopefully, Kappos will have his vote on the floor of the Senate shortly after the Senate returns from its summer vacation, which is indeed likely to happen.
Many in the patent bar are optimistic that someone of the stature of David Kappos, who is a patent attorney and engineer himself, will be able to fix the patent system and get things back on track. I asked Ron Reardon, a patent agent with Patents & More, Inc. and the President of the National Association of Patent Practitioners, for his thoughts regarding Kappos. Reardon told me:
I am optimistic that David Kappos will bring important changes to the PTO. David’s deep experience in the practice of Patent Law gives him a unique perspective of the frustrations that patent practitioners and inventors have had over the years with the USPTO. I think he is a good choice and that he will work to restore balance to the needs of the USPTO and the innovation community. The Senate should confirm him quickly and let him get to work. The majority of NAPP members, whom are members of the patent bar, are also optimistic and hopeful that his confirmation will be a breath of fresh air that will revitalize the heart of the economic engine of the United States.
This is the widespread sentiment, and one I share. I have been cautiously optimistic about Kappos, but the more I hear about him and from him, particularly his testimony last week during his confirmation hearing in the Senate Judiciary Committee, the more I believe he is the right man for the job. Perhaps the only thing that Kappos has to fear is that so much is expected of him, and there is such hope in the patent and innovation community. While we are extremely hopeful, and grateful that a patent attorney has been appointed to run the Patent Office, which oddly enough is rather revolutionary, we must remember that the challenges facing the Patent Office and the patent system are real and substantial. It took years for the problems to reach crisis status. It will take at least some time to dig out, even with the good moves that have already started and the moves that Kappos will certainly make upon assuming the leadership role within the USPTO. Lets just hope it doesn’t take as long as it could.
If Kappos happens to have a magic wand, or maybe a cape or utility belt, perhaps he should remember to bring those to the Office in Alexandria starting day one. If he is able to leap tall buildings in a single bound, all the better, because it is time to roll up sleeves and become a part of the solution. We all know what happened to get us into this mess, but finger pointing is not the solution. From this point forward you are either a part of the problem, or a part of the solution. I choose to be a part of the solution. How about you?