Todd Dickinson Interview Part 3: Fee Diversion, Kappos, 3 Track

Todd Dickinson discussed Three Track at USPTO on 7/20/10

My interview with Q. Todd Dickinson, the current Executive Director of the AIPLA and former Under Secretary of Commerce for Intellectual Property and Director of the Patent and Trademark Office, took place on August 19, 2010, in a conference room at AIPLA headquarters. In part 1 of the interview we learned about Dickinson’s background and early career that eventually found him Director of the USPTO, the American Inventors Protection Act and his philosophical approach toward allowing patent applications. In part 2 of the interview we discussed average pendency and ways to bring it down, as well as a detailed discussion about patent reform, which Dickinson told me was not dead, and which has turned out to be prophetic indeed. See Bipartisan Group of Senators Urge Action on Patent Reform.  In this final installment of the interview we discuss how current USPTO Director David Kappos is doing, whether his honeymoon period will ever end, whether there is any concern he will burn-out, and we discuss the AIPLA position on Three Track, plus the usual fun questions at the end.

Without further ado, here is part 3 of my exclusive interview with Todd Dickinson.

QUINN: Going back to Kappos.

DICKINSON: Yes?

QUINN: How do you think he’s doing?

DICKINSON: I think in many, many ways he’s doing extraordinarily well. I think the change with the Kappos Administration is clearly been night and day. I think that in particular the issue of the relationship with stakeholders and a sense that the Office is now open for business. It’s open to hear from the stakeholders on the kinds of reforms that are needed administratively there. The fact that he seems to be fighting tooth and nail to keep his budget in place, and has now enjoyed some success. Just two weeks ago he got the supplemental appropriation approved, and I will tell you, there is almost nothing more challenging to do around this town than getting supplemental appropriation at a time when money’s tight. And he was able to do it. And to get Commerce Secretary Locke and Cam Kerry, the Department of Commerce’s General Counsel, and the President signed off on it as well as the Office of Management and Budget and senior congressional leadership. And so it required a lot of heavy lifting. But I think getting that money back in place is an extraordinary accomplishment.

QUINN: I would agree. But I can’t help but notice that it seems that he is still enjoying a honeymoon period.

DICKINSON: Yes.

QUINN: And I think partly that’s because he is doing things, moving the ball forward. But do you expect this honeymoon to end? It’s got to end, right?

DICKINSON: I hope it doesn’t end. When does a honeymoon convert into just somebody doing a great job? Will he hit turbulence? Yeah, there will be times when he hits turbulence. The hiring program we’re talking about is not easy. Getting the IT systems in place are not easy. Finding key personnel for key jobs, people change out over time and keeping the personnel at the level, particularly the senior level that you need is critical. And so he will be challenged. There are even bigger challenges he could take on. Much of what we’ve talked about with regard to the administration is internal inside the Office. But traditionally that office looks globally as well. And harmonization, the long sought extraordinarily challenging goal of harmonization that they want to take on a big, big project. What about going back to the Alexandria process where the major group B plus countries, the major industrialized countries of the world talk together about harmonization? That would be something.

QUINN: Well, he told me when I interviewed him that he was just getting started.

DICKINSON: Yeah, that’s what he tells me.

QUINN: And that’s extraordinary. Because it seems like over the last year he’s accomplished so much and with the funding is certainly no small feat. I asked him whether he was gonna burn out.

DICKINSON: That’s a good question.

QUINN: You know that job, you were there for a couple of years. And I don’t suspect he’s the burn out type, but do you think that that’s a worry? Because he’s going at a frantic pace.

DICKINSON: I talk with him, and meet him personally, professionally a lot. And I think that those of us who care about him, and care about the Office, monitor that, let’s put it this way. And I would agree I think at the moment I think he’s hitting on all cylinders and he’s doing very, very well and that’s not too much of a risk right now. But I think it’s something that always requires kind of monitoring, particularly as tougher times come along. And there are other big things that could happen that could really advance his agenda or retard it. And usually it’s around resources. If we were able to get diversion ended permanently; if we were to come up with a mechanism that everybody could agree on, then I think there would be a strong push to raise fees to some degree which would find broad support, I believe, candidly, even though it’s a tough time. Because they would know where those fees were going, and they’re going to a place they want them to go. And they trust the person who’s gonna then direct those fees and manage that process of expenditure, he could really enjoy a golden age, let alone a honeymoon. But if some of those things aren’t able to happen, he’s not able to hire, his IT systems continue to be where they are, then he’s got big, big, big challenges. The odds tend to favor the former I think at this point. I hope.

QUINN: Well, hopefully, things will continue to go on a good path because it seems like we really need some help there.

DICKINSON: I don’t think a lot of your readers may realize what a personal commitment Dave has made, too. I’m not gonna spell it out, but he gave up a lot personally, financially in a lot of ways to take on public service. And that is extraordinary.

QUINN: Right. And I don’t obviously know the particulars. And maybe you do, and I would never ask you to talk about them. But I do think probably most people if they stopped and thought about what it was that he left to do this, and just looked at the government pay scale have got to realize that he’s sacrificing. Sacrificing for seven days a week and seemingly 18 hours a day.

DICKINSON: I will tell you, as I said before and I had challenges, too, it was the most fun job I ever had. Gene, you get to make decisions that affect — you go from worrying about decisions getting made or lobbying the decisions that are made to actually making the decisions. And there was just nothing cooler.

QUINN: Did you ever find yourself to some extent paralyzed, not in a bad way but in a “I don’t want to screw this up, this is so important” kind of way?

DICKINSON: Rarely. And not that I’m not a deliberate person. I think I am. But I have more often had the opposite experience. Once the legislation gets passed, for example, so once in my case the American Inventors Protection Act passed, then you move to the process where the whole rules package that governs the implementation of that legislation has to be written. And that’s a huge process. If we pass the patent reform, for example, then the next big, big, big challenge the Kappos administration has is the rules package and implementing it. What’s the opposition system gonna look like, and what does it mean to move to first to file? There’s a huge amount of stuff that has to be figured out. So when we were writing the rules package, we had a very good team working on it. Steven Kunin, Al Drost, Nick Godici, some others, and we would do this once a week. They’d come in and they’d say, there are ten things that only you can decide. And the first time they say that you kind of gulp and you go, “Okay.” And it’s kind of like trying to hit fungos out of the park. It’s just really a fun thing when you say, okay, this is the way we’re gonna make it. And they’re very good about it often. They salute and they make it that way. I remember one issue in particular where, I won’t tell you which one it is, but where the — and I used to have the executive committee vote on some of these issues and what they recommend, and it was 15 to 1 against me, but the rule got implemented. (Hearty Laugh)

QUINN: Really?

DICKINSON: Yeah.

QUINN: Wow.

DICKINSON: I think that’s worked out pretty well, too.

QUINN: Well, good, good. Now I want to jump back to something we just said. Fee diversion. And you mentioned this when you presented talking about track-one. If my memory’s correct, at the round table you were saying that AIPLA is cautiously optimistic and potentially very supportive of track-one if there could be assurances that there be an end of fee diversion.

DICKINSON: Right. Because, don’t forget, what track-one is basically a pay to play system where you want to get your application accelerated, there are a number of ways you can do it now. You can be over 65. You can have particular green technology. You can agree to drop a case in exchange for accelerating one. Or you could provide the very elaborate IDS and search which triggers your inequitable conduct issue. Today as we sit here less than 2% of applications are accelerated. Which is I think a very interesting number. Will that go up dramatically under a system where you’re paying a significant additional fee? Probably not significantly, but it’ll provide that additional opportunity. And that’s what I think this idea is, is to provide additional means by which you could accelerate your application. Now we have PPH, three other ways of doing it, too, so.

QUINN: What do you think if you can speak on behalf of the AIPLA, what would —

DICKINSON: Well, one challenge is that if you have a significant fee, and I’ve heard numbers that I could live with and I’ve heard numbers that make me gasp. If Dave sets a fee, don’t forget, it does not matter where he sets that fee. If he’s not appropriating the money back. So if the fee diversion, if those fees get diverted, that’s a huge problem. So we have a tough time supporting it until we have assurances the fees aren’t gonna be used —

QUINN: Okay. Let’s focus on that. What type of assurance do you think would satisfy you personally and then maybe the members of AIPLA?

DICKINSON: Well, at a very structural level, Senator Coburn from Oklahoma has proposed in the last Congress, and actually the Senate Judiciary Committee passed a version, of a mechanism for ending diversion which creates basically a revolving fund into which all the revenues goes and only the Office can draw from that fund. And they can draw from the fund completely. Senator Coburn proposed that again in the markup in the Senate bill that you mentioned, but it turned out that they couldn’t quite get the majority this time around. And so they tabled it with the understanding that he’d have an opportunity to bring it up on the floor. Now, there will be a huge fight between the appropriators and him and whoever else supports it. Hopefully, we can head that off, we can find something that people will count the noses and figure the better part of valor is a good compromise and there are other mechanisms by which you can achieve this. For example, OMB, the very last days of the Clinton Administration, the Office of Management and Budget signed off on a version of fee diversion ending as well. So there are various mechanisms that are proposed for doing that.

QUINN: And those would be satisfactory?

DICKINSON: Many of the ones that we talked about are satisfactory. Certainly the Coburn approach is satisfactory to us.

QUINN: Okay. All right. And before we get into some of the more fun —

DICKINSON: And Senator Coburn gets full marks from us for being aggressive on that particular issue.

QUINN: Before we get into some of the fun stuff.

DICKINSON: I thought we’ve done fun stuff?

QUINN: I mean like just the really fun stuff, hopefully. Or stuff that I find just fascinating to learn about people.

DICKINSON: Sure.

QUINN: AIPLA, when we started this interview we talked about how sometime you get criticized for doing too much patent stuff. Sometimes I just heard the other day you get criticized for doing too much copyright stuff (laughing). So obviously, you’re doing a lot of stuff, and if you’re getting criticized from both ends you’re probably right about where you’re supposed to be.

DICKINSON: Well, I like to say, and I seriously say this, but I think I have the best job in IP at the moment. Because we’re right at the white hot center or so many very, very interesting issues in our world. Both legislatively, in the courts, and the administration. Domestically and internationally, we try to keep up with almost every single major issue that’s out there. And there’s been a significant ramp up in the work that we’ve done. Of example, we file a significant number of amicus briefs. We’ve filed Bilski three or four time, as a matter-of-fact, on his way up on the charts. And so that’s a substantial, fascinating work, but it is work. And the organization has to deal with it. The fact that Kappos has six round tables and five pilot programs and six initiatives, all those Federal Register notices we respond to as well, three-track, strategic plan, like that. So that’s the significant ramp up.

QUINN: What do you have going on now —

DICKINSON: The Copyright Office comes out with a lot of notices. We respond every time there’s a copyright notice, we’ve gotten now it’s usually a plan that’s come out of the national enforcement coordinator Victoria Espinel. We respond to that. We’ve met with her regularly.

QUINN: So what would you identify as maybe the top three things, if you could, that AIPLA is working on presently?

DICKINSON: Stabilizing the PTO’s resource (sustainable funding, is what the current euphuism is), patent reform legislatively, and, if you will, patent reform in the courts as well. Keeping up with where the courts are heading. Therasence for example.

QUINN: And how do you guys decide what cases to file a brief? Is there an internal process that you go through?

DICKINSON: Yes, absolutely.

QUINN: Can you describe that a little?

DICKINSON: Sure. We have an amicus committee. The amicus committee is one where the members are appointed by the President. And it’s a very star-studded group year in and year out if you looked at it right now. It’s chaired by Pat Coyne over at Finnegan and Ed Reines at Weil Gotshal is the vice-chair. They get several things. They get inquires from various parties. This happens routinely. Or a question or a case moving along – Myriad is an example – where it’s so visible and so important that the amicus committee decides to take it up on their own initiative. They themselves will debate it, digest it, figure if they have a position they want to recommend to the board. They then come to the board and say, here is this month’s recommendations about the following cases. Sometimes they recommend not doing anything. More often they recommend doing something. And the board has to decide. And the board decides do we want to get involved, first of all, do we want to file amicus brief. And secondly what positions do we want to take. And thirdly, who’s going to write the brief.

QUINN: “Who” meaning the people on the committee, or do you hire out?

DICKINSON: We are fortunate to have a large pool of volunteers who I think derive good career satisfaction out of writing our briefs. And it’s usually pretty competitive. Bill West at Howrey for example wrote our Bilski brief. A good example. And so first of all, the position is generally debated at the board which is conveyed to the drafter. Then they come back with kind of a first draft which gets these days a lot of debate along these issues. And then it goes back for another revision, and then it would routinely go then to the Executive Committee for the final polish. And the senior staff reviews it as well, particularly AIPLA’s Director of Legal Affairs, Jim Crowne, who guides the process.

QUINN: All right.

DICKINSON: A very deliberate process. And I think it has to be. You know, we have over 16,000 members. And they represent a wide range of views, you know? So to try to find a consensus viewpoint is challenging. It’s also liberating in the sense that you could do the right thing for the system. You could step back from it and say, we think this is the right thing, the right way the law should go in this area because we really represent so many people. And I’ve been told by Judges that it actually gives our briefs significant weight knowing that.

QUINN: That’s good. And Judge Michel, I asked him about amicus briefs, and he really likes them.

DICKINSON: Yes.

QUINN: And is very positive in the influence that they have, it’s good to hear from people who maybe don’t have quite the vested interest as the two parties involved.

DICKINSON: Oh, yeah. And I think if you look at some of the really bigger cases where there are huge numbers of amicus filed, I’m always fascinated to read some of them. They bring up points of view and things that I would never have thought about.

QUINN: Right.

DICKINSON: Well, that’s interesting.

QUINN: Yeah, I think that that is right. All right. Now, I have some questions in some of the past interviews that I’ve done, I’ve asked people – without knowing who I will talk to next – what fun and/or random question should I add to the list for the next person who’s in the hot seat? And I’ll ask you to add to the list. Do you have a timing issue?

DICKINSON: Well, I’m going to Brazil at 10:00, so.

QUINN: Okay, all right.

DICKINSON: Another fun part of this job, is we get to deal with — you know, Brazil’s a hot area for us in terms of relationships. So I need to go down there. Anyway.

QUINN: So do we have time for — ?

DICKINSON: Sure.

QUINN: Okay. Now, Nick Godici’s fun and random question would be essentially if you could have a do-over in life, if you could call a Mulligan, what would it be and what would you do differently?

DICKINSON: It sounds very self-serving to say I think I’m pretty satisfied with a lot of the way my life and career have evolved.

QUINN: That was Chief Judge Michel’s response. Is that he — and I get the sense that he didn’t want to look back and say, you know, I’m satisfied because of all the decisions I’ve made. Is that sort of your pick?

DICKINSON: My answer would be, I could probably find smallish things. Small ball kind of things where I might have made a decision differently today. And I don’t want to make it sound smug or self-satisfied to say that there aren’t others. But in my career in particular, I’m very pleased with the way it’s evolved and where it’s led me to. And I’m hopefully giving back, I do need to give back. And so I’m like Chief Judge Michel. I’m not completely uncomfortable reflecting that way.

QUINN: Yeah.

DICKINSON: I could probably come up with a couple —

QUINN: Because you never know what those decisions would have led to, too.

DICKINSON: Indeed.

QUINN: (Laughter) All right. Chief Judge Michel’s question is how do we incentivize talented lawyers to go where they can do the most good as opposed to only where they can make the most money? And his thought on this was also that sometimes if you just chase the buck you’re not doing what’s good for society and long term not doing what’s good for your career.

DICKINSON: I think, yes. The single most significant challenge that lawyers and law firms practices face is balancing out the competition for talent, which is usually addressed with dollars versus the quality of life that that has to become associated with that talent in order to get those dollars. I think we, not that people should be paid any less or — but it is critical to try and strike a quality of life balance for the attorneys both in terms of their personal/professional balance, as well as the kind of stuff they work on. You know, why do we waste so much significant talent on basic discovery? And so trying to enhance the quality of work life. Not only in timing but in the interesting nature of the work itself I think is key. I’m always struck that some litigators I know who’ve never been in a courtroom. Well, if you want to be a litigator, go litigate. I think a good example, Finnegan, I’ll give you a good example. The Finnegan firm has established what’s basically a pro bono project with Veterans’ Appeals. Now you say what does that have to do with IP? Well, they both are heard by the CAFC. So by joining with the Veterans’ Appeals they match up people who have a real need with an opportunity for a young lawyer to go and argue a case before the CAFC. I think that’s pretty cool.

QUINN: That’s a great program.

DICKINSON: Absolutely.

QUINN: Okay. Now, Kappos’s question was, what do we need to do as a country to ensure that our intellectual property system truly lives up to its promise as the creator of opportunity for Americans that it deserves to be, and it should be?

DICKINSON: We face a growing challenge that the importance of the intellectual property and the respect for intellectual property may be on the decline. It’s not that it’s not debatable, it’s always debatable. But a combination of factors, the Internet is a key one, have led to a lot more sense that intellectual property rights are not, or should not be as protectable. But the challenge is always in getting it right, it’s striking that right balance. You can always say there are times when we’ve gone too far in terms of the rigor with which we’ve done something. But we can make those kind of changes. But you don’t want the pendulum to swing too far too fast. Because you’re never sure what’s around the corner. As the Chinese economy grows, for example, there’s a Newsweek article that just came out (http://www.newsweek.com/2010/08/12/how-to-understand-american-decline.html), which said that the growth rate of patent applications, is faster in China now than it is in the United States.

QUINN: I just heard that.

DICKINSON: That’s challenging. That would suggest that we’re innovating less, or that the competition’s innovating more in the sense that the Chinese would be competition. And that the system needs the kind of reforms we’re talking about, I think. Particularly harmonization in order to continue the spread of technology and innovation that the system promises. Don’t forget, the primary goal of the patent system is not necessarily to reward the inventor, it’s to disseminate technological information quickly and publically so that other people can build on it. That’s the benefits of society. And if we overly restrict patents, you may get people relying more on trade secrets, and I think that’s counter intuitive and counterproductive.

QUINN: Yeah. What fun or random question would you like to add? And I won’t tell you who’s next.

DICKINSON: What is the importance of mentorship and who was a particular mentor for you and how did they help.

QUINN: That is a great question. Now on to the really fun stuff. Favorite hobby or pass time?

DICKINSON: Politics and gardening, probably. Or reading and gardening.

QUINN: Okay. What kind of gardening?

DICKINSON: Around my house.

QUINN: Okay. Favorite sport?

DICKINSON: Football.

QUINN: Favorite team?

DICKINSON: Steelers. I’m from Pittsburgh.

QUINN: Right. Favorite movie?

DICKINSON: You know, I vary in my answer to that over the years.

QUINN: You can give a couple.

DICKINSON: I usually probably say The Godfather. The two Godfathers together, or Chinatown. I guess I’m stuck in the 70s a little bit.

QUINN: Well, no, The Godfather would be on my top two or three lists, yeah.

DICKINSON: Yeah.

QUINN: Okay. Favorite author?

DICKINSON: Paul Michel. (Laughter) Oh, you mean author of a —

QUINN: Well, no, that works, I suppose. Because in our line of work we don’t always have as much time —

DICKINSON: I don’t nearly as much time to read as I’d like. Who am I reading recently? I tend to read an awful lot of non-fiction, but political writing I read is Matt Bai, if you know Matt Bai, I like a lot of his writing. But Paul Michel I like. I read a lot of those cases he writes.

QUINN: Who would you most like to meet, and theme here is famous American inventors, Benjamin Franklin, Thomas Edison, or the Wright Brothers, or you can go off the list.

DICKINSON: Well, I’ve been fortunate enough to meet a number of very significant inventors. If you ask me this question a hundred years — someone sitting here in a hundred years, I met James Thompson, for example, University of Wisconsin. I’ve met Ananda Chakrabarty who’s famous both for his invention and his famous Supreme Court case. I think somebody that I’d like to go back and meet, I think Thomas Edison would be particularly fascinating. Not only because of what he’s invented, but more importantly because of how he invented it. How he developed the research lab in particular and how he really, really brought the United States into the technological forefront through this process. Probably Thomas Edison. And not because I worked for G.E. either. (Laughter)

QUINN: Coolest invention of all time?

DICKINSON: The swing? (Quinn laughs) Coolest invention of all time. I’ve said this before, I think the last major invention of the 20th Century, I got asked this a lot at the turn of the century, was stem cells. Now I had the opportunity when I was Director to meet Dean Kamen while he was developing the Segway.

QUINN: Okay. Who’s the best fictional inventor, Emmet Brown, Back To The Future, Q from James Bond, Tony Stark from Ironman, the Professor from Gilligan’s Island, or MacGyver? Or you can go off the board.

DICKINSON: (laughing) I think the way that he manifests in the first Ironman movie, I think Tony Stark in a lot of ways is very, very good. Industrialist become inventor as long as he’s still on the side of right, I think that’s a key issue there. We’ll see.

QUINN: Okay. Favorite Sci-Fi visionary, Jules Verne, Gene Roddenberry, George Lucas, or H.G. Wells?

DICKINSON: I think in terms of hitting the mark most closely over time certainly it’s going to be Jules Verne.

QUINN: I feel the same.

DICKINSON: He’s had a longer run.

QUINN: Right. I wonder whether Gene Rodenberry in 50 to 100 years from now you’ll look back because it seems more and more in the labs people are trying to do with the cloaking devices and with transporting things here and there.

DICKINSON: Yes, and I think things dealing with that subject, gravity and other things, I think — forces.

QUINN: Maybe not so much visionary, but inspiring.

DICKINSON: Oh, I guess you could find Jules Verne has an invisible something in there.

QUINN: Oh, no, no, no, I would say Jules Verne. And so far I’m gonna have to figure out a different question I’m afraid because everybody says Jules Verne. Star Trek or Star Wars?

DICKINSON: Wars.

QUINN: Okay. Any particular reason?

DICKINSON: Star Trek got too complicated for me (laughing). There’s too much to keep up with.

QUINN: Okay. Well, with respect to Star Trek, would you go Captain Kirk or Captain Piccard?

DICKINSON: Piccard.

QUINN: Piccard?

DICKINSON: Yeah.

QUINN: Okay. You’re the first one who’s gone Piccard, I think.

DICKINSON: Really?

QUINN: Yeah. Any particular reason?

DICKINSON: Well, I happen to like Patrick Stuart as an actor in some other things. And I think he is more convincing and less cartoonish in the role.

QUINN: Right. Well, that’s I think fair. All right. And that’s all I have. I really appreciate you taking the time.