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Exclusive Interview: Commissioner Focarino — Part 2


Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
Zies, Widerman & Malek
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Posted: February 16, 2012 @ 11:48 am
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Commissioner Focarino in her office at the USPTO on January 27, 2012.

On January 27, 2012, I interviewed the new Commissioner for Patents Peggy Focarino. In part 1 of the interview we discussed her career at the United States Patent and Trademark Office, the ombudsman program and more. In this installment we discuss a day in the life of the Commissioner for Patents, negotiating with the Examiner’s Union relative to the updated examiner count system and implementation of the America Invents Act.

Stay tuned for part 3, the interview finale, which will publish on Friday, February 17, 2012. In part 3 we discuss the fact that certain examiners and certain Art Units seem to simply not issue patents. We also discuss the process for determining where the Patent Office will locate satellite Offices.

Without further ado, part 2 of my interview with Peggy Focarino, Commissioner for Patents.

QUINN: Right. Now, one of the things I wanted to ask you about, shifting gears maybe a little bit, is a day in the life of the commissioner for patents. Now, and you’re laughing, and I suspect there probably is no such thing as a ‘typical day.’

FOCARINO: Right.

QUINN: As you know, virtually no one is going to serve in the position that you now hold. So to give the patent bar an idea of what it is like to be commissioner, what would you say?

FOCARINO: Well, I deal with a variety of things. The day starts pretty early meeting with my senior staff and we all review what are the events of today? What do we have going on? What things has Director Kappos tasked us with doing? Who’s got that issue? What is coming up? Is there testimony coming up? Do we have to comment on that? Which rule package is going out, and vetting those. How are we doing operationally? What is the QIR data looking like? Are there areas that we really need to focus on? Do we have enough resources? How’s the hiring coming? We have got 1500 examiners we are bringing in. When’s the next class coming in? Have we done focus sessions on how the most recent training is doing? All kinds of things. We are looking at where is the budget at, do we have any comments yet when is the 2013 budget due? So you are looking at all aspects of the operation of the patent organization. Policy, operations, budget and IT. I may need to talk to John Owens because the system may have gone down for an hour in order to find out what is going on and why did that happen? If my examiners cannot work, is it a major problem? What are we doing to fix the problem, how can I work with you to make sure it does not happen again?

QUINN: So when you come in in the morning, before you have come into your office for the first time and turn on the lights, do you have any idea what your day is going to look like?

FOCARINO: I see what is on my calendar, but usually it takes on a whole different approach. There will be someone that may call in that has an issue and you need to look into it. Or it may lead you in a direction that you did not expect. So no, you really do not know. You have a sense of what you need to be focused on, but there may be other events that overtake that for that particular day. And then you will have to figure out how to get to those other events.

QUINN: Now, your eyes are lighting up and you are smiling as you answer. Is that a fun part of the job, that you really are at the junction of all patents and how the operation works? And is that what makes it an interesting, unique opportunity?

FOCARINO: Yes, I think it is, it is really fun. And I have to say that when the announcement came out that I was going to be nominated to be the commissioner, I got a lot of congratulations along with condolences. (Laughs)

QUINN: Yes, I think I gave you both. (Laughs)

FOCARINO: Congratulations and condolences. And when I thought about that a few days later it struck me that most of the people that said that to me, both congratulations and condolences were not people from the United States Patent and Trademark Office, they were external people. And that really struck me.

QUINN: Really? That is interesting.

FOCARINO: Yes, It is a good sign in a way because people on the inside I think have a lot of, I am not going to say faith because obviously you gotta have the skills to do this, but people on the inside believe that we are making great progress. We have got some really superb managers and group directors and assistant deputy commissioners, and everyone is working really hard and they can see the progress being made. So everybody is hopeful. And it is not me that is going to change anything, basically, my job is to make sure everybody has the resources to make this a place where people take pride in their work and want to come to work every day and where people feel like when they talk about the United States Patent and Trademark Office as the place they work that they will get a good reaction from people; we will have a great reputation. But I will be gone and most people will still be here. You have to have that sense of pride and commitment from the individual level up.

QUINN: Yes. I understand what you are saying, but I think that over the previous few years prior to this new administration, there was really a lot of fear and animosity among the patent bar towards the patent office because there was this feeling that the leaders of the office were trying to do what they thought they needed to do but did not have an eye on the impact it was having outside the building.

FOCARINO: Yes.

QUINN: And what I hear now is is that people are very optimistic, but cautiously so because the thing I hear over and over again is is that something that you just said, which was after they people who are there now leave, the office still is going to be there. And who’s next?

FOCARINO: Right.

QUINN: And then the other thing is right now everybody realizes, and if you did not realize coming in to the end of this year, it has got to be clear now what an enormous change the American Inventor’s Act is going to be. You guys are spitting out rules left and right.

FOCARINO: Yes.

QUINN: And that with any change there is going to be turmoil. And you have such a short timeline and Congress has asked you guys to do all kinds of additional things and responsibilities. Some that you have never done before.

FOCARINO: True.

QUINN: So I imagine when I offered my condolences I was thinking about the overwhelming job at hand, and the compressed timeframe to do these things in.

FOCARINO: Yes.

QUINN: And how do you manage? How do you cope? I mean, at the end of the day are you able to leave here, turn off the lights, and get some down time and recharge your batteries?

FOCARINO: I am. I have always been very good at doing that because otherwise you could work 24/7, frankly. There are not enough hours in the day to tackle all the issues. But you have to be able to walk away from it because if you do not do that then you will get burned out so fast that you are not going to make good decisions at all. So I am very disciplined about that. Do I put in a lot of time? Yes. At night when I get home am on email? Yes. On weekends? Yes. But not 24/7, certainly.

QUINN: What is the latest business email you have ever received? I mean, not substantively, and you do not have to tell me who it was from.

FOCARINO: Oh, it is probably, 10:00 at night.

QUINN: Yes.

FOCARINO: And the earliest would be 5:00 in the morning.

QUINN: Yes.

FOCARINO: But it comes very natural to me to want to look at that email. I will look at my Blackberry, but like I said, I seem to be able to carve out enough time for myself to want to come in here the next day. I am very good at not letting issues bother me. The American Invents Act is a good example. I see it. It is a huge change. And you are right, when you look at the timelines and all the other things, the reports and the programs that we have to stand up and the rule packages that have to go out and then the training that follows and how to change some of the things we are doing and the examination process. But I really look as it as a once in a lifetime opportunity. It is. And I guess my attitude is if the rules that we put out there are not perfect, and I know they are not going to be, we have to continue to listen to our stakeholders and we have to be willing to make modifications. And I am perfectly willing to do that. No one gets it right, I mean, you have different interpretations of what some of the legislation says. The stakeholder community has very different ideas of what is right. And so our job is to strike a balance, I think. And not only internally how we can handle this well and in a measured approach, but a balance externally. You are never going to please everybody. People are always going to think that things need to change. But you have got different ends of the spectrum. So the job is to try to strike the right balance, understand that you will not get it perfect and be very willing to modify, to tweak, to iterate on the initial rules so that they become more and more confined to what really should be done and not going in the opposite direction where we say, okay, here is the rule, we are done.

QUINN: Right. It strikes me that with all attorneys if you ask them at any given moment I think what the big issue is or whether it should be this way or it should be that way, you view all those questions through the prism of the last several cases that you just had your hands on the file. And I guess that is just a hazard of what we do. We get so myopic in so many different ways with respect to learning the invention and responding to office actions and everything, that then you take a step back and you stall have that on your mind and you think, well, if this rule were that way in this case it would not work so well. How do you manage to go through all the comments and figure out where the nuggets of gold are, and where it is not just, “well, this would be great for some cases, but when you try to extrapolate that to 250,000 issued patents, or 500,000 applications a year, it just would not work.” How does that process play out?

FOCARINO: Well, you have a lot of people looking at the comments. And they look at those comments and since you have people from different areas looking at the comments the goal is to get a diversity of people so that you can get those reactions, if you will. So one person may say, hey, this sounds like a good idea. But then you have got the person that is familiar with say a pre exam operation and they can say, well, it does, but in practice here is what it is going to cause us, really. We would not be able to do this in the hundreds of thousands of applications. So that may lead us to another discussion of, “okay, we cannot do it with our current process but can we change that? And if we can change it then maybe we can accommodate this comment.” And especially when you see comments that are not one off comments, they seem to be a theme. And those comments cannot work in our current structure. Then you reach out to the people that are doing the reengineering for our processes and say, look, are you looking at this particular area and are we changing it in a way that we can accommodate this type of request so that we can change? So we are trying to view them with a mind that it is not that they can fit into our current process and structure, but if it is a good idea and it seems like the right thing to do then how can we change to be able to do it? And so I think that is a really good approach because I know, at least my view of things before and this is way back, when you are a SPE or you are a group director and you are not involved in policy, patent policy decisions internally and everything, sometimes you would feel like policies and procedures were created, but not with a lot of consideration of how they impact operations or things. What I intend to do is set up a structure in my senior management team where all of the functional areas, whether it is policy or operations or the more administrative functions, the budget areas and our IT areas, the patents end-to-end project. All those things are going to be heavily coordinated and there is going to be a lot of collaboration so that everybody has sort of an operation’s background at some point but they understand the decisions they make in their functional areas. It is first and foremost on their mind that the operation has to be taken into consideration, too, and externally how does our customer interact. So I think it is key. And it is cliché to say when you have stovepipe operations obviously you’re going to get that. But that you cannot have that, you gotta have all of these functional areas getting together every day and talking about if we want to make changes and implement things and we are going to change the rules, how do they impact everyone from the person that is filing the application to the examiner when it gets on their desk to the tech support person that has to process the papers coming in, to the people in the post exam area that are issuing the patents. You have to have the right people in the room to be able to really poke holes in everything and then come out with a good way forward.

QUINN: Well, there are a couple things that come up there that I would like to talk about. One is any time there is going to be changes, or not any changes, but with certain changes I know that there is union involvement.

FOCARINO: Yes.

QUINN: So I want to ask you about that. But before we do that, the thing that just popped up as you were giving me that answer is this – I wonder now that you are in this role without the word “Acting” in front of the title, what if anything has changed? My guess is is that largely things are the same, but there probably have been some things that have changed.

FOCARINO: Yes, I think—well, there is been a lot of changes, obviously, since Dave Kappos has arrived. And so I was acting I think right on the, right as he came in or right before he came in and regardless of who was in that undersecretary role, I think when you are acting in a position like that, especially if it is a commissioner position and you are in between administrations, I think you tend to be very conservative. You do not want to rock the boat too much because you do not know if the person that is coming in that will have that job can live with it. You want them to be able to live with what you have left for them, right? And so I think the tendency is to try to keep things on track, make some improvements if you can see that they should be made, but you tend to be very conservative. And I think the differences now that I have the opportunity to make changes, and I am accountable for those changes, and that is right up my ally because I really—I strongly believe in personal accountability, so I—and it does not scare me, I will try my best and if things do not work out, we will change, we will fix. No one’s going to die. But it is, just admitting that, hey, maybe I did not think of everything and let’s do this and hopefully it’ll be a better outcome. And so I have an opportunity to really make some changes and because I am not acting any more I feel like it is an opportunity and I also have the responsibility that comes along with it and the accountability that if I make decisions that really adversely impact the patent corps then I am accountable for them. And I embrace that. I think that is the way it should be.

QUINN: Okay. With respect to the union issues, I know it would be totally inappropriate to dive into any particular specifics, really. But I also know that you were involved with the examiner count system. And just procedurally, a couple things come to mind. One is that negotiation seemed to just be one of the most fast track negotiations I can ever imagine. And, Two, the output seemed to be something that everybody looked at and said ws good, maybe we would have wanted a little bit different. But it was a good outcome.

FOCARINO: Right.

QUINN: So I was wondering if you could tell us how does a negotiation like that go on mechanically? How did that happen so quickly, and are you pleased with where the count system is now and how that is been going? It has been about a year and a half or a little over a year since that went into effect, correct?

FOCARINO: Yes, it has been a year and a half, I think. So it began with Dave Kappos when he initially, shortly after he got in here asking a group of us to start thinking about looking at the count system and changing the count system. So he had talked to his senior managers about it and then he had also approached the union about it, POPA. And there has been a desire on the part of both parties to actually take a hard look at it and adjust, so it started out like that and then it turned into a—we knew we did not want to go through traditional negotiations, which in our agency had had a record of being very drawn out and not a good outcome. And if you got an outcome it was a third party that would be basically telling you what to do or the federal services impasse panel, so that you would be living with something that neither party really wanted to begin with. So Dave asked us to, and he gave me the lead on this and he asked me to get a team of whoever I wanted in the room from management. People that know the system, that know the ins and outs of the count system. And then he asked Robert Budens, the president of POPA to do the same thing. And he said I want you to get in a room and I want you to come out with a product, and I want it to be done quickly. I do not expect perfection. I want a 70% solution. And that is what we did. we got in the room together, we called it a partnership or whatever term you want to use, but we began with a set of principles that we wanted every decision that we made related to the count system would conform to. And that is how we fleshed out the changes and it required a lot of trust on the part of both sides. And I like to describe it as both sides were really nervous about number one the outcome, but about number two, being the decision makers in the room. Dave gave me total authority to make decisions. He did not want labor attorneys in the room. He did not want anybody in the room but managers who understood the system and the examiners who understood it. And gave us total decision making authority. So when you think about it, that is pretty scary to be given the authority just to change a system that hasn’t been changed in three dozen years. But the union was also nervous that they would not make the right decision for their 7,000 examiners. And so it struck me that if both sides were that nervous about the outcome then it was probably really good. It was going to be a really good product.

QUINN: And how has it played out? Are you happy with it?

FOCARINO: Yes, it is played out really well. I mean, we ended up giving the examiners more time, and then shifting credit and the giving more time part made me nervous, obviously, because you can run the model and see that you are going to get less output and so there is been a reluctance over decades to give time because of that reason and our pendency and backlog challenges. But in effect we actually got more output out of it because examiners seem to be happy with the system.

QUINN: It seems like that change and then maybe some other changes after the fact have given those examiners, who are interested, an incentive to engage much earlier in the process.

FOCARINO: Oh, yes, yes, yes. So just a small thing like examiners only get time when an applicant called them for an interview. And beginning two years ago we gave them time. You pick up the phone and call an applicant and you have an examiner initiate an interview we will give you non-production time for that. So that created an incentive of course there are the small, small numbers of people that may abuse that, as in any system where you are giving something. But we have ways to check on that if we think that someone is taking that time and not engaging applicants and not moving the application forward. And so far we really have not found anyone that is.

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About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

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