Updated: Monday, August 24, 2009 @ 5:12:pm Eastern
On Friday, August 21, 2009, the United States Patent and Trademark Office posted a job opening for the position of Deputy Commissioner for Patent Examination Policy at USAJobs.gov. See Job Announcement No.: MJM-09-0217-ExRD. Many will undoubtedly recall that when Jon Dudas resigned, the day Barack Obama was inaugurated as President of the United States, John Doll who was the Commissioner for Patents was promoted to become Acting Director of the PTO, leaving open the position of Commissioner, which was filed by then Deputy Commissioner for Patent Operations, who was Peggy Focarino. Peggy Focarino then became the Acting Commissioner for Patents, leaving open the Deputy Commissioner for Patent Operations position. With the recent confirmation of David Kappos as Undersecretary of Commerce for Intellectual Property, a title that also comes along with the title of Director of the USPTO, that seems to have left John Doll in limbo, and perhaps Focarino in limbo as well. Now the USPTO is looking for a Deputy Commissioner for Patent Examination Policy, the job formerly held by John Love who retired earlier this year. In any event, it would seem that the management ranks at the USPTO are in flux. I cannot claim to be in the loop on this, but if I were asked to opine on what might happen my opinion would be that Focarino will have the “Acting” removed from her title and become the Commissioner for Patents, and John Doll will be the odd man out. As for the Deputy Commissioner for Patent Examination Policy, who knows? There are plenty of qualified candidates out there, including some who lost their jobs during the Dudas Administration.
As I have written from time to time, the majority of PTO observers that I know blame John Doll for the mess that became of the Patent Office under the Dudas Administration. I personally liked the fact that Dudas was actually trying to do something, but became increasingly disillusioned that it seemed the direction of the Office was to do things that were of little consequence with respect to what could and should have been done. Even worse, it seemed that those things that were not inconsequential were almost universally bad for the patent system. I have been told stories by quite a few people, and unlike most stories they are surprisingly uniform, but not so uniform that they are rehearsed or disingenuous. Without getting into the particulars, the belief of many seems to be that Doll had the ear of Dudas, and many of the initiatives that were launched during the Dudas Administration came from John Doll. I was not inside the Patent Office, and I have nothing other than stories to go on, but what I do know is that regardless of what is true or make-belief, the overwhelming sentiment in the Patent Bar, or at least the circles in which I travel, is that Doll was largely responsible for many of the mistakes of the past few years.
I have no way of knowing whether Doll was at the center of the decline of the Patent Office over recent years, but there is a perception problem that anyone in the industry has to be knowledgeable of and take into account. Given that David Kappos is a patent attorney and seemingly very knowledgeable, and that he filed an affidavit that can only properly be characterized as being opposed to the claims and continuations rules, and given that the DOJ has signaled that Kappos may want to rescind those rules and moot the Federal Circuit appeal, one has to wonder what, if any, role Doll will play in a Kappos PTO Administration.
I have never heard anything but positive reviews of Focarino, and I know that there are many former PTO employees who worked with and/or for her in various capacities who think very highly of her. I also particularly enjoyed my on the record discussion with Commissioner Focarino. She seemed knowledgeable and committed to the Patent Office and making a better patent system. The initiatives she spoke to me about in March are being implemented, prosecution in many areas is accelerating and examiners have been encouraged to work with applicants to issue patents when there is allowable material. It seems she has instituted a number of important changes and the culture and perceptions are changing as well. Therefore, if there is a move to find qualified individuals with broad support and respect from the community, the Patent Office would be hard pressed to find someone better than Focarino.
Originally I thought that if anyone other than Focarino would be considered for Commissioner for Patents it would be Nick Godici, but I tend to believe that his return to the Patent Office was for a limited time and for a particular purpose. He is eminently qualified, and having him in any capacity, even as a trust advisor or someone who can be called for input is a wise move. But if Godici does return to private practice, as I suspect he will, what becomes of Focarino and what becomes of Doll? What does it mean that the Patent Office is searching for a Deputy Director for Patent Examination Policy? This position is certainly one that would have a lot of input into the implementation of the new rules that are pending, or life after those rules should Kappos decide to withdraw some or all of the rules presently being held up by the Federal Courts and the Office of Management and Budget.
I have heard from a couple people who seemed to be purely speculating that Doll would either leave the Office, or perhaps go back into the Technology Centers where he seemed to have a particular knowledge and skill set. I don’t know if that will happen, but I think if I were Doll I would choose now to ride off into the sunset. While it is inarguable that the Patent Office is better and more mission dedicated now than it was during the Dudas Administration, it is also inarguable that Doll played a major role in the rules packages that are held up and seemingly opposed by Kappos. In industry someone so intimately associated with such a large failure would likely not survive. Add this together with Godici returning as an advisor to the Patent Office, and the fact that Doll replaced Godici, and one has to wonder if Doll’s days at the USPTO are numbered. If they are numbered, and a new member of senior management is on the way, we could be poised to see a shake-up at the top of the Patent Office, and maybe Godici will even be a part of that.
In any event, whoever takes the blame for the failed rules, the truth is that during the tenure of John Doll as Acting Director a lot of changes were implemented that seem to be paying dividends. I am sure there is a nice, cozy job waiting for him in the private sector if he wants it, so why not head for the door and a very comfortable 6 figure (not including the decimal) salary? That seems to be the logical thing to do if you ask me. But then again, I thought the logical thing to do was to withdraw the claims and continuations rules after they were enjoined. How odd that we will likely be at that point in a matter of weeks. Think of all the damage and fighting that could have been prevented?