Patents, Politics and Life on K Street – My Interview with Bob Stoll

Bob Stoll

In early November 2011, Bob Stoll, Commissioner for Patents at the United States Patent and Trademark Office, announced his intention to retire from the agency effective December 31, 2011. Stoll was appointed Commissioner for Patents by Under Secretary Kappos in October 2009, serving a little more than 2 of his 29 years as an employee at the USPTO as Commissioner for Patents.  Bob is currently a partner in on the patent team in the Intellectual Property Group at Drinker Biddle & Reath LLP.

In his 29 years with the Patent and Trademark Office Stoll held several leadership posts including training foreign officials on all aspects of intellectual property (IP), overseeing the Office of Enforcement, and directing federal legislative priorities for the Agency. In his tenure as Commissioner for Patents, Stoll was in charge of implementing initiatives to improve the speed and quality of the patent review process, was instrumental in reducing the patent application backlog, and undertook an initiative to clean out the oldest cases on the USPTO docket, which for a time actually raised some of the key metrics but was objectively the right thing to do. Of course, Stoll was also an integral part of the USPTO team working to get patent reform across the finish line and then in the early implementation efforts of the AIA.

I tried to get Stoll on the record while he was at the USPTO.  I don’t think he dodged me, it just never worked out.  I travel a lot, he travels a lot and when it was convenient for one of us it was never convenient for the other.  In the time I have known Bob we have become friends.  I respect him enormously. Bob’s knowledge of all things patent is extraordinarily deep, and whenever we get together it is always a lively conversation.  So I am extremely happy to bring this on the record interview to you.

In this conversation we talk about life after the USPTO, billable hours, Presidential politics, being on the famed K Street in Washington D.C., the U.S. economy, improvidently granted patents and much more. So without further ado, here is my interview with Bob Stoll.

QUINN: I appreciate you taking the time to talk to me, Bob.

STOLL: Gene, it’s always a pleasure to talk to you.

QUINN: I never got this opportunity on the record while you were at the Patent Office and I’ve been trying to get with you since you’ve left the Patent Office but now it’s been what, six months or so?

STOLL: Yes, it has.

QUINN: So this is a great opportunity to talk about what you’ve been doing, whether you like it, do you think you made the right decision, etc. And then whatever else we can get into, all things IP. I know our conversations are always live.

STOLL: Absolutely and I really enjoy talking to you.

QUINN: Well, good.

STOLL: Let me tell you what I’ve been doing. I’ve been really just trying to get my feet stabilized underneath of me and I’ve been really having a good time developing a practice. What I’m doing mostly for my firm is I’m going out — it’s a large firm, it’s over 600 people, they’ve got a lot of clients. Not all of their clients are IP clients of the firm so I’m going out to talk to a lot of these clients with other partners to see if we can’t help them with their IP issues. And the advantage to that is we already have them as clients and there’s no conflicts there so I’m actually, you know, mining in an area that has great potential. Now that’s one piece of what I’m doing. I’m also speaking a lot, representing the firm at international conferences. I was at the Judicial Conference in China with you and really enjoyed talking with a lot of judges and meeting a lot of the folks in China and seeing if we can’t do work for them. And I’ve been in Korea ;I have been focusing on China, Korea and Japan externally. And I’ve been doing a lot of expert work, and I really enjoy delving into the subject matter of a case and the nuances and it’s a little bit like sleuthing to try to figure out what’s going on and where the truth is! I have also been starting to develop my own practice by talking to different companies where I have relationships and doing some work for them and that’s not limited to just straight prosecution, litigation or advice. I will help them with policy type issues and I’m doing some of that right now as well. I am also trying to establish an expertise at Drinker for handling procedures under the new Inter partes review. I was very engaged in the passage of the AIA and have familiarity with all of the new procedures We are putting together quick reaction teams that can efficiently handle the new inter partes review procedure. It’s really exciting. I’ve been traveling a lot. I already am 1K for next year, which is not a good thing. I am engaged on a lot of the issues related to IP and I’m still trying to help improve the system as we move forward. I can’t go and directly talk to the PTO but I do help organizations like the AIPLA, IP and ABA-IP section develop their positions with respect to implementation of some of the later implemented provisions of the AIA. And my days are very, very full.

QUINN: I bet. Do you like what you’re doing? Do you think you made the right choice?

STOLL: I really like what I’m doing. I mean, I’m seeing it through a different lens– I had been at the Patent and Trademark Office for 29 years. I’ve been in government for 34. I’m now seeing a different aspect of it and I’m learning a whole new way of engaging. But one drawback is billable hours! I don’t like this billable hour thing.

QUINN: I’ve got news for you.

STOLL: That’s not my best thing.

QUINN: Nobody likes the billable hour thing.

STOLL: And I’m — this — this – document management system still has me confused. I am kind of pigeonholing things the way I used to do. But other than that I really like the people, the work is exciting, patent prosecutors from our office are coming to me every day with very complex problems and asking my opinion about how to solve them and I’m helping them with that and, you know, it’s all very, very exciting.

QUINN: Yes. Isn’t it amazing that even as thick as the MPEP is, the answer to whatever problem faces you is never there?

STOLL: Gene, I learn something new every day and I’ve been doing this for almost — for over 30 years now and I’ve been in the MPEP all afternoon today looking at different issues related to some cases and I’m finding new things out every time I look at it even though I was very much involved with it when I was the Commissioner and an Examiner.

QUINN: Yes. I mean, it’s the best thing we have going but —

STOLL: It is a great document. It’s a living document.

QUINN: That’s a good way to put it, it’s a living —

STOLL: It’s not complete and there are lots of holes in it but it is a pretty good roadmap — for implementing statutes and rules.

QUINN: Yes. Yes. Now before we go on, since you haven’t been in the private sector for very long — you’re sort of like in a —

STOLL: I’m a newbie.

QUINN: — your like an associate on some levels.

STOLL: I am on some levels. Yep.

QUINN: So maybe I could give you some advice.

STOLL: I’m listening. I’ll take advice.

QUINN: On the billable stuff what I always tell all new associates is you’ve got to write down every single thing that you do, and if an e-mail takes you .1 hours or .2 hours, it’s got to go down because pretty soon you spend a couple of minutes here, a couple of minutes there and it doesn’t go onto your sheet and at the end of the day you’ve spent all day and you only have four or five hours accounted for. It is very easy to do that because it is always easier to say, “well, you know, it shouldn’t maybe have taken me that long to do that so let’s discount the time.” The problem is you can’t have that discussion with yourself or with your partners or whoever’s the billing person if you didn’t write down the time on your time sheet.

STOLL: Let me add one more piece to that. I think that’s very good advice. You got to do it every day.

QUINN: Oh my gosh, yes.

STOLL: I mean, you’ve got to write it down every day or you will lose it.

QUINN: Yes.

STOLL: And I found that out when my secretary brought it to my attention, saying: “you were on that for a at least an hour or two today” and I went ooh, I forgot about that completely.

QUINN: Yes. You probably even have to do it almost immediately.

STOLL: I think you do.

QUINN: Because if you don’t, I know when I do it almost immediately the hours seem to add up much quicker than if I at the end of the day try and recreate —

STOLL: I think that’s true.

QUINN: But it’s a new experience for you.

STOLL: It’s not one I enjoy.

QUINN: No. No.

STOLL: It’s the only part of the business that I really do not like.

QUINN: You know, I don’t know that anybody really, really likes that part of the business and as you know, patent prosecution has largely gotten into a flat fee or project fee world so —

STOLL: It has. But I’m still doing the billable hours so where is the justice in that? I mean, I’m hearing a lot of these different modalities for getting income, set fees, payment per month, those types of things. But I’m still doing billable hours.

QUINN: Yes. I mean, that’s not a bad thing. If somebody’s willing to pay you — and I’m sure you’ve got a pretty good rate — that’s probably a nice place to be. But all kidding aside, if we all could charge by the hour I think we would.

STOLL: But the work is really interesting. We are doing great work. We’re helping clients work through the system.

QUINN: Now one of the things you started talking about doing, although I don’t think you used the word — “lobbying” — maybe you did but I didn’t catch it. Would you characterize yourself as a K Street lobbyist?

STOLL: No, I wouldn’t but, that wouldn’t bother me if I eventually evolve into that area. I mean, I am technically not lobbying. Nobody’s paying me regularly to go up to the Hill right now and actually try to influence the lawmakers in a certain direction but that would not bother me. I mean, I do have significant experience from my days as Administrator for Legislative and International Affairs advising members and staff on the Hill. Remember, at that point I was advising the different members as to ideas related to intellectual property and how to codify them in beneficial statutes. I would like to do some of that because I find having a varied day is very, very interesting.

QUINN: Yes.

STOLL: I think that there is a requirement to register if (20) percent of your time is spent preparing to lobby or lobbying . I’m not registered yet but if I start getting more hours in that area I will register and I don’t have a problem registering. —

QUINN: Right. Yeah. That’s —

STOLL: Drinker is on K Street so I would be a K Street lobbyist!.

QUINN: Yes. You know, walking up and down the street you see all kinds of people that you see on TV on the various talking head shows and so for — they look very different when they’re not wearing their tie and a jacket, you know.

STOLL: I totally agree.

QUINN: It’s like “I know that person. Where do I know that person from?”

STOLL: I haven’t done much lobbying yet, but I think informing the Hill does provided an important service..

QUINN: Okay.

STOLL: Lobbying can be interesting!

QUINN: Yes. I bet you’d be really good. You’re very passionate. That’s why I always —

STOLL: I want to make the system the best I can make it.

QUINN: Yes. So the other thing that came up there is you’re doing expert witnessing.

STOLL: Yes.

QUINN: How does that work out? I mean, are you — are you looking at this as a testifying expert, as a consulting expert or both?

STOLL: I am looking at it as a testifying expert. That’s what I actually am being engaged to do several times now. I can’t get into the specifics of the cases because they’re confidential but I can tell you that I am looking at issues related to processes before the Patent and Trademark Office, how are particular issues handled at the PTO? And I’m looking at inequitable conduct issues and what happens is someone comes to me and decides whether or not they want to engage me and I review the documents and I see what my personal opinion is and sometimes I agree with them and sometimes I don’t agree with them and I take the ones that I agree with.

QUINN: Well, that’s always a nice place to be.

STOLL: I like that because, , I’m making a decision as to whether or not I think that there’s a — that I should be on a particular side. The passion is important. I can’t do that if I’m not aligned with the position that I’m taking.

QUINN: Right. And then you lose your credibility —

STOLL: I think that’s true.

QUINN: I remember when I first started my legal career was doing litigation for four years. The New Hampshire structure is heavy partners, very few associates and I was the only associate to like nine or 10 partners so I assisted on all kinds of different litigations in every different area and there were these experts that were known to have an opinion if you had a checkbook.

STOLL: Ahh. I think that’s a mistake because you can’t stay in that industry very long.

QUINN: Right.

STOLL: That’s not a good thing to do. And it’s not the right thing to do so I’m not interested in that. And I don’t want that to be my full practice either. Just as I said I want a little piece of lobbying, a little bit of experting. I want to help clients with respect to procuring their patent applications. I think that’s gonna be an interesting piece of it. I want to help with the new procedures. I want to be engaged in issues related to post-grant and inter-parties review. I’ve been very engaged in commenting on the implementation through different groups and, of course, as involved in writing the legislation itself and getting it passed and I want to do some of that work.

QUINN: Well, I havea question for you on that. Maybe you can answer, maybe you can’t. With the whole post-grant review it seems like there’s increasingly a larger number of litigators that are interested in potentially doing that kind of work but historically that’s never been done by litigators and I understand the Office has always had a pro hoc practice with respect to the board.

STOLL: Yes.

QUINN: But that there hasn’t been all that many times that it’s ever been implemented and it seems like a much more restrictive pro hoc practice than what somebody might be familiar with in federal court, which is basically do you have a pulse and a registration in any federal court and have you promised to read the local rules? And if you do then you’re in and doesn’t seem to be the PTO practice. Do you have any thoughts on that?

STOLL: I think you’re correct. I think that there will be a limited pro hoc appearance for someone who is not registered at the Patent Office.. I think that’s the right decision and let me explain. Post Grant and Inter Partes review= procedures are going to be extremely intense. There’s going to be a one-year period basically from the institution to the conclusion with an exception, under, unusual circumstances for an additional six months. That is really moving fast.

I think you’ve got to have people who are doing this on a regular basis, understand the situation, have some obligation to the Patent Office meaning there is a mechanism for the Patent Office handling practitioners which is only through the registration practice if there’s a problem and I actually think the way for litigators to engage in these types of procedures is to pair up with registered practitioners because I think just as most of the litigators won’t have the familiarity with the patent prosecution and the ability to handle those actions in inter-parties review and post-grant review, a lot of the practitioners have no capabilities with respect to discovery techniques and what has to happen there. So I think teaming these folks together is probably the best way of working through the system and getting things done within that one-year period.

QUINN: Yes, I think that that’s right. I wonder where the industry is going to go because I think teaming is difficult when it’s not within the same firm. I listen to the litigators, I listen to the prosecution folks or the folks that have reexamination experience. The word on the street is they get to the client first and they tell them they don’t really need to do a reexamination, so there’s already this kind of back and forth bias. I almost think that the firms that have both a litigation practice and a PTO practice are probably going be the ones that are in the best position.

STOLL: I do too, which was one of the reasons I thought about Drinker Biddle when I was leaving the government employment. I think it’s good to have multiple capabilities. y I also think, the courts will be providing stays more frequently based upon the fact that they’re gonna have a time certain when they’re gonna get a decision out of the Patent and Trademark Office and that’s not gonna be years down the pike, the process iss gonna be fairly quick. So I think litigators are going to have to talk to their clients about that —

QUINN: Yes. I know what the dates are and I know that they say they’re gonna be compressed and I look at reexamine practice as it currently exists and I wonder — I wonder whether this really is going to be condensed and what’s going to happen if it’s not? On a totally different issue, just to throw out an analogy there, it’s been over three years since the Senate has had a budget and there doesn’t seem to be any mechanism for the people to say whoa, hey, this is actually what we hired you to do, guys, get it done. Do you think it will happen as quickly as advertised? And if it doesn’t, what’s the consequences?

STOLL: Well, I think that’s a great question. I do think it will happen. I mean, I’ve worked with Dave Kappos for my entire time as Commissioner and he is the Energizer bunny and he will get these things done. He’s very, very engaged and thinks that he needs to fulfill the obligation of the statute. And it is in the statute.

QUINN: Right.

STOLL: So there is a statutory time limit there. I don’t know exactly what the penalty would be. I don’t see one in the statutory language itself. But I believe at least this director will see to it that the process is done within the time period of the statute.

QUINN: Yes. I would have to agree with that. Now maybe you don’t want to go into this. Maybe this is too political but, you know, I just wonder what about that next director? And let me remind you, you and I have a $1.00 bet —

STOLL: Yes, we do.

QUINN: Who knows what’s gonna happen. I don’t think it’s just me. I think that there may be the startings of some rumblings in the industry; people being afraid of what might happen to the USPTO. What are we going to wind up with?

STOLL: I think that’s a very good question and I think people should be considering that when they’re casting their vote for President of the United States if they have an interest in the Patent and Trademark Office.

QUINN: Well, that’s where we may be different a little bit.

STOLL: Yes, I do know we differ. But, let’s also recognize there’s got to be some vigilance by the user community that I think needs to be exercised when any President is selecting a head of the Patent and Trademark Office and I think the vociferousness; the activity that led to passage of an AIA in a timeframe and in a climate where very little was moving at all and the Republicans and the Democrats were not getting together, that would need to be reenergized if another President was going to select someone not capable of handling the Patent and Trademark Office. Remember, that’s in the statute too, that the Director shall have a background and knowledge in the patent and trademark areas.

QUINN: Just for the record, you’re smiling as you’re saying that because —

STOLL: Well, because that charge was made before.

QUINN: — you and I both know by the time that that started to get around to be questioned in litigation whoever was there clearly had experience enough to continue on to stay there.

STOLL: Well, I’m not sure I agree with your “clearly” statement, but the challenge was not successful and I do think that having had that challenge will make whoever is selecting consider the issue a little bit at least.

QUINN: And I know that back when Romney ran in ’08 he promised to appoint a patent attorney. I remember when that first happened. I was at PLI and we were having one of these sessions, I don’t know if it was a patent bar or another program. I walked into the room and said Romney just announced he would appoint a patent attorney to run the Patent Office — and people looked at me dumbfounded. This is probably the first time the word “patent” has ever interjected itself in a substantive way into a presidential race.

STOLL: Well, all I can say is let me hope he doesn’t switch on that one too.

QUINN: Okay. Well, I’ll give you that and — and I won’t go any further there. We’ll save that for a dinner date or —

STOLL: All right, I’m in.

>>>> Continue Reading Part 2 <<<<

PART 2 PREVIEW: In part 2 of my interview with Bob Stoll we discuss how the Presidential campaign is shaping up, what it is like to be in D.C. during a Presidential election year, stimulus, the U.S. economy, what innovation means to the economy and improvidently granted patents.