I wish I had some inside information to pass along, but I do not. All I can seem to come up with is unsubstantiated rumor and innuendo, but the report the other day from Patently-O that Duke Law Professor Arti Rai is heading to the Patent Office to fill a long vacant policy setting position has too much of a ring of truth to completely ignore. There have long been rumors associated with Professor Rai given that she is a long-time friend of President Barack Obama, both having been in the same Harvard Law School class. What we do know is that Rai was a member of the Obama transition team, and was rumored to be on the short list for Undersecretary of Commerce for Intellectual Property, a position that also carries the title and responsibilities of Director of the Patent and Trademark Office. As practically everyone in the patent bar that came in contact with Professor Rai was kissing her ring in anticipation that she would become the new PTO Director, I heard an unsubstantiated rumor that she had been offered the position and declined. I want to make as clear as possible that I am writing about rumors, and unsubstantiated ones at that in order to distinguish from hard facts and inside information so that readers understand that this may all be much ado about nothing. Having said that, as well respected in academic circles as Professor Rai is, it would be an enormous mistake for her to be given a policy setting position within the USPTO. So allow me for a moment to buy into the rumors and make my case.
First, the thought that a long-time friend of President Obama’s would be given a policy directing position within the United States Patent and Trademark Office is at first glance not so unbelievable or even tragic. The trouble is that this would continue a disturbing pattern taken to new heights by President Obama, although employed by several other Presidents of recent vintage. The setting up of a shadow government with Czars is extremely disturbing, contrary to the spirit (and likely mandates) of the US Constitution and placing a close, personal friend into a policy making and/or setting position within the USPTO without Senate confirmation would be yet another in a long line of tragic mistakes that have us now with a government where day-to-day policy of agencies is being set by those who have not been questioned by the Senate.
Let’s get the 800 pound gorilla in the room out into the open, shall we? I know not a single member of the patent bar that believes that the claims and continuations rules were wise, within the power of the USPTO or in any way, shape or form likely to lead to a better patent system. Even Jon Dudas testified before Congress and explained that if the rules went into effect it would maybe impact 5,000 applications a year; of course leaving off the fact that those would be the most commercially relevant innovations. There is no other way to characterize the claims and continuations rules other than as a full out assault on the very innovation that the US Constitution wants to foster and encourage. Professor Rai supported those rules, advocated for them and this alone should disqualify her from any position within the Patent and Trademark Office.
Professor Rai is also on the record as supporting Patent Office rulemaking authority. Again, I do not know a single member of the patent bar that believes this is wise. Thankfully, I cannot name a single member of Congress that thinks it is wise either. In fact, Congress has been asked for years to grant the Patent Office rulemaking authority and has never done so. This Congressional inaction, whether by happenstance or because they understand how the Patent Office could easily and likely would abuse such power, has lead Professor Rai to urge the Patent Office to continue to use the courts to push the envelope and take substantive rulemaking as far as it can be taken without Congressional approval. Again, someone who takes the position that the Patent Office should use the courts to do what the Congress explicitly refuses to allow them to do should be disqualifying.
Professor Rai also advocates for inequitable conduct reform, but her position as disclosed by Patently-O is that there should be more on the record communications between Patent Examiners and Patent Attorneys or applicants. That is exactly 180 degrees in the wrong direction. We do not need more on the record, we need less on the record. Inequitable conduct is the single largest problem facing the US patent system, and we need to continue to make it harder to prove, rather than easier to prove. If the Patent Office wants better information then a frank, open and off the record discussion with the Patent Examiner is absolutely essential. The other solution would be for Congress to legislate Rule 56 and force the Federal Circuit to give deference to the Patent Office, which they simply refuse to do, but legislation has roughly between a 0.000% chance of happen to a 0.001% chance of happening. Supporting accelerated examination with all its ridiculous requirements and mandating on the record early interviews is simply ill-conceived, straight out a bad idea and shows a lack of understanding of what the Patent Office does on a daily basis. Again, this should be disqualifying.
Moreover, at a time when the patent bar is extremely optimistic about the direction the Patent Office is heading, it seems reckless to suggest that such a prominent position would be given to someone who the practicing patent bar is in such fundamental disagreement with on major issues that have divided the profession and industry for 5 years now. The entrance onto the scene by David Kappos, the return of Nick Godici in an advisory role, the progress made in day to day operations and fundamentally changing patent prosecution to make it more collaborative by Peggy Focarino, the naming of the highly respected Bob Stoll to be Commissioner and the retirement of John Doll were all extremely positive moves. Why then would such an obvious, glaring and unnecessarily antagonistic move be made to bring in Professor Rai? It should not be done and if it is done it would all but certainly jeopardize any cooperation between the Office and the industry.
Professor Rai is no doubt smart and she is no doubt a highly respect academic, but I don’t believe she is very respected or held in high regard by the industry or the profession. At a time when healing is needed, such an obvious move toward Chicago-style politics is unwise and unwarranted. Friends and cronies should not be put in position of authority, having direct access to the boss, only to report on or inform regarding day to day operations. What is tolerated in Chicago should not be tolerated in Washington, and certainly not tolerated with such an important aspect of the nation’s economy as our innovation policy. President Obama seems to have a growing reputation for micro-management, and we certainly do not need another politician micro-managing the Patent Office. That is what we had for the most of the Bush Administration, but never to the point where someone with such access to the White House was involved in forming political innovation policy. Micro-management by those with an agenda has brought us to the point where pendency is out of control, the backlog is out of control and that horror movie should not result in a sequel.