Secretary Locke Promises Strongest IP Protection in the World

David Kappos addresses Inventors Conference 2009 at USPTO

I am just getting back from two days at the United States Patent and Trademark Office, having attended the 14th Annual Inventors Conference.  There is much to report, and much to write about, and I will continue to digest, analyze and write about what I saw and my impressions in the days to come.  It is, however, undeniable that there is a completely different tone at the Patent Office.  Senior level management, from Director David Kappos,  Deputy Director Sharon Barner, Patent Commissioner Bob Stoll and Deputy Commissioner Peggy Focarino, mingled with inventors and seemed genuinely happy to discuss issues and appear committed to revitalizing the patent system.  There were many, including myself, who wondered what direction the Patent Office would take under new leadership, and while it is early to give a grade, if we are going to be honest and give an interim report card the only fair grade to give at this point is an A.  From top to bottom there is an optimism that exudes from everyone I spoke to at the Patent Office.  Changes that ordinarily would take months are taking weeks, and the political leadership seems to REALLY understand the importance of innovation.  In fact, in video-taped comments played during lunch today Commerce Secretary Gary Locke said that the Obama Administration pledges to provide US inventors the strongest IP protection available anywhere in the world.  What more could we realistically ask for at this point?

The terms “innovation” and “technology” get thrown about as preferred populist soundbites aimed at showing leaders are in touch and willing to pay homage to American creativity, ingenuity and desire to succeed.  But what is happening at the PTO and in some Washington, DC circles seems very different than anything I have witnessed during my professional career.  Those in the patent bar know when a politician talking about patents whether they understand what they are saying or are just using buzz words.  Hearing politicians not only say the words but articulate them as if they truly understand what they are saying is inspiring, and increasingly frequent.  Either there are some in Washington (and Alexandria, VA) who really do understand, or they are exceptionally good actors.  To be honest, I don’t care which is the case as long as they keep doing things that make sense.

At lunch today Secretary Locke said the Obama Administration pledges inventors their full support and will continue to provide the strongest IP protection available anywhere in the world.  Many of the inventors may not have picked up on the importance of this statement, but it was not lost on the industry professionals in the audience.  Less than two weeks ago 34 Members of Congress wrote to Secretary of State Hillary Clinton about concerns relating to the Administration potentially weakening intellectual property rights in order to obtain an international agreement on climate change.  We all know that the Obama Administration wants a climate change agreement, but would they be willing to compromise to the point of weakening intellectual property rights?  Could Secretary Locke’s remarks be an indication that the Obama Administration will not weaken patent protections in the name of reaching an international agreement?  The right things are being said, and maybe just maybe it is for real.

Does Secretary Locke’s strong commitment to patent protection signal continued support for the patentability of genes.  Of course, it is truly misleading to say that genes are being patented despite what the ACLU claims.  What is being patented are methods, and methods that require human intervention simply do not naturally occur.  Nevertheless, the Patent Office has been sued in the United States Federal District Court for the Southern District of New York based on the theory that gene patents violate the First Amendment because so-called gene patents, which are really method patents protecting diagnostic methods and screening, lock up thoughts.  As crazy as this sounds, the district court refused to dismiss the case despite acknowledging no statutory basis exists for the claim and even explaining that prudential standing requirements prevent such generalized constitutional challenges.  Hopefully Secretary Locke’s unequivocal support for the patent system and patents in general signals that the Obama Administration will continue to fight this baseless challenge and stand fast with innovators.

From the very beginning, Secretary Locke has staunchly supported innovation and been unwavering with respect to his stated goal of fixing the patent system.  He again today pointed explained that the Obama Administration would continue to work toward reducing patent pendency and cutting into the more than 800,000 patent applications pending that have yet to receive any attention from the Patent Office.  Strong, unequivocal statements such as the one made today are an excellent start, but initiatives aimed at changing the culture and once again becoming a patent granting authority suggests that this is not just hollow rhetoric.  Already the examiner count system has been changed.  A creative new program was announced yesterday that would allow inventors to abandon unnecessary applications that are no longer strategically important in exchange for having a strategically important application advance to the front of the line.  Efforts to push for fee reductions and micro status for independent inventors signal that the USPTO understands the needs of the inventor community.

Kappos said yesterday at lunch (in remarks that I cannot find in his prepared speech) that every night when he leaves to go home he is deeply troubled by the fact that so many innovations are waiting for attention.  At the risk of sounding naive, I believe him.  It was also almost shocking to hear him say that he understands a functioning patent system can and must play an important role with respect to unlocking funding and allow small businesses and start-up companies to create jobs.  In apparently speaking off script and showing real emotion it seems evident that Kappos is sincere, gets things on a high level, and understands what the USPTO can, should and must become.

I have been cautiously optimistic about the direction the USPTO is heading.  Big business and independent inventors rarely share many interests in common, and while Kappos from day one expressed an understanding of the needs for independent inventors and small business, would he really be able to keep his eye on what is good for every segment and stakeholder group?  Would his experiences guide him toward big-tech friendly policies?  The outcome is unknown, and in any event will largely be in the hands of Congress.  But I see no reason reason for cautious optimism any longer, but reason for true optimism.  To be sure, the honeymoon period is likely to end at some point, but if Kappos and his team stay on message and keep their eye on the ball there is real reason to anticipate the kind of renaissance at the Patent Office that last happened when President Reagan took Office, and was then again briefly on display during the Clinton Administration under the stewardship of Q. Todd Dickinson.

Could the Administration really stand committed to continuing to provide strong rights that work to provide the incentive necessary for individuals and private enterprise to continually innovate?  Do the leaders at the Patent Office really comprehend reality on the ground for inventors, small businesses and start-up companies, who need patents and need them now?  All the right things are being said, actions are following and input and ideas are being solicited.  This is what we have been wanting for many years now and rather than question and remain suspicious we should embrace this new attitude with open arms for as long as it lasts, because realistically it won’t last forever.  Notwithstanding a dose of reality, waiting for the other shoe to drop is not a strategy, and neither is being paranoid or suspicious.

I say lets roll up our sleeves, pitch in and try and do as much good as possible while the climate is right.  With patent rights being assailed on all sides now is not the time to raise questions among and between believers, now is the time to get the patent system and the economy moving again.  Now is the time to stand by the Patent Office, stand by Myriad Genetics and fight those who believe the patent system is unconstitutional. When the Patent Office was running amok the industry had no difficulty standing up with the filing of more than 50 amicus briefs in the Eastern District of Virginia to say with one voice that the claims and continuations rules were nonsense.  Let’s not forget Kappos was among those who stood up and said enough is enough.  So why not stand together to get things done?  Why not unite and file amicus briefs in support of the USPTO and Myriad Genetics?  If the ACLU is successful in that case they will not stop, we all know that, and don’t tell me there is no chance Judge Sweet won’t rule that the patent system violates the First and Fourteenth Amendments!

As my father used to say, assuming the pretty girl will turn you down is a strategy for never dating pretty girls.  So I just don’t see the mileage in assuming there is a sinister plan.  Kappos seems to be articulating a sensible approach.  Admittedly, Congress may be as likely to do the wrong thing as something that makes sense, but playing politics with something as important as innovation policy is just plain stupid,  Treading water is no longer an option.  A lane needs to be picked.  The status quo is not an option.  If there wind up being great but unfulfilled promises there will be be plenty of time to lament being naive and foolish, and I will be out there pounding the drum.  I just don’t feel like the sky is falling any more, and that is a refreshing feeling indeed.