With no notice to the public, and after the Senate was reported to have adjourned for their August recess, on Friday, August 7, 2009, David Kappos was confirmed as Undersecretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. While I applaud the quick action by the Senate to get Kappos confirmed, I must admit that I am at the same time shocked and saddened. In my opinion, Kappos is the right person for the job, so I am glad he was confirmed. I think getting him in place sooner rather than later is exactly the right thing to do. Nevertheless, I am not a fan of government rushing so fast that they forget basic principles of open government. Justice Brandeis famously said that sunlight is the best dissenfectant, and he was 100% right. It seems that our government is increasingly rushing to do things, failing to read legislation they enact and not working for the people who hired them. So I am definitely glad that Kappos was confirmed, and confirmed quickly, but the Senate should have given notice of his confirmation vote. Absent such notice the vote should not have been taken. Had the Kappos nomination been controversial there would have been no time for opponents to contact Senators to express their concerns after he was reported out to the full Senate by the Judiciary Committee. Government by ambush is not something to be celebrated, even when I agree with the action taken.
Secretary of Commerce Gary Locke is quoted on the USPTO website as saying:
We are grateful to the Senate for its swift confirmation of David Kappos to lead the U.S. Patent and Trademark Office. “It’s no secret that the agency currently faces significant and persistent challenges, but David is the right person to meet them and carry out my top priority for the USPTO — dramatically reducing the unacceptably long time it takes to process patent applications.
Robert Holleyman, president and CEO of the Business Software Alliance (BSA), said in a press release:
David Kappos possesses the deep experience and knowledge needed to tackle problems in the US patent system, and with the help of a willing Congress, he will shepherd in a new era for the USPTO that will streamline its operations and foster US innovation and economic growth.
We can expect in the coming days to hear from many more groups, companies and interested parties about how they are glad that David Kappos is at the helm. Everyone I talk to is very optimistic. Kappos has a lot to live up to, and I hope he can. I suspect he will live up to the expectations and hype, and our patent system will be better off for it.
Speculation will soon turn to what will become of now the former Acting Director John Doll, and the current Acting Commissioner for Patents, Peggy Focarino. To the extent that anyone cares what I think, I am hoping that “Acting” is removed from Focarino’s title and she is once and for all made the Commissioner for Patents. I hope that John Doll steps aside and allows the new leadership team of Kappos and Focarino, who will be advised by special counselor Nick Godici, to usher in the change that is so desperately needed.
I do not know John Doll personally, but there is no avoiding the truth that the overwhelming majority of those in the patent bar believe John Doll is responsible for many of the problems we now face. I am not going to say he did, or he didn’t, but this is the undeniable perception among patent attorneys and agents. Therefore, I think it would be extremely helpful for him to step aside and allow us to be grateful for his stewardship of the Office during the days following Jon Dudas’ resignation and the confirmation of David Kappose. Perhaps Doll can return to a different position at the USPTO outside of the top level management, although I suspect he would be much better off riding off into the sunset and taking one of what will likely be many offers from large law firms to become a special advisor.
I harbor no ill will toward Doll, but if we are going to move forward it is time to turn some pages and start fresh.