David Kappos, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, will be stepping down and leaving the agency effective the end of January 2013. This news originally came to me from a high-ranking, well placed source within the USPTO who spoke on the condition of anonymity, and has subsequently been confirmed by the USPTO.
“I am honored to have served this administration by leading the USPTO,” said Kappos. “I believe we have made great progress in reducing the patent backlog, increasing operational efficiency, and exerting leadership in IP policy domestically and internationally. Thanks to the entire USPTO staff for their dedication and hard work. I wish them the very best as they continue their efforts to support the U.S. economy by promoting and protecting innovation.”
Indeed, Director Kappos has presided over the USPTO at a time of great change, thanks in no small part to the passage of the America Invents Act (AIA) on September 16, 2011. This has lead the USPTO to put the pedal to the metal cranking out proposed rule package after proposed rule package. The final wave of the initial AIA implementation rules packages will come out in February 2013 ahead of Phase 3 of the AIA implementation on March 16, 2013, which is when the U.S. will convert from first to invent to a first inventor to file system.
Given the timing of Kappos’ departure it is all but certain that he is sticking around long enough to finalize the first inventor to file rules before stepping down as Director. The first inventor to file rules package will need to be approved by the Office of Management and Budget (OMB) prior to finalization and ultimate publication in the Federal Register and the rules need to be published at least 30 days ahead of becoming effective. The OMB approval process takes at least several weeks, but can take longer. Thus, the USPTO should have its final rules completed and sent to OMB by sometime in early January 2013, if not earlier.
In working with the Obama Administration to help get the AIA passed, Director Kappos and his staff worked closely with Senator Patrick Leahy, who Chairs the Senate Judiciary Committee and who took a lead role over the past several years shepherding the AIA through to completion. Upon learning of Director Kappos’ decision to step down Senator Leahy issued this statement:
I have had the distinct pleasure of working with Dave Kappos over the last three years in his capacity as Director of the Patent and Trademark Office, and for many years before that in Mr. Kappos’s role in the private sector. Director Kappos was instrumental in the development and enactment of the Leahy-Smith America Invents Act. He and his team have set the PTO on course to implement the key provisions of the Act, which will improve the patent system for decades to come. Director Kappos’s leadership of the PTO has been applauded by Democrats and Republicans, and by all sectors of the business community. I was sad to hear of his decision to step down; the President and the Commerce Department have lost a valuable member of their economic team. I wish Dave all the best.
Indeed, in addition to correcting so many of the practices and procedures and ushering in a new era of communication and mutual respect, Kappos will be known for his work on the AIA, both in the halls of Congress and in his tireless effort to produce the voluminous rules required to implement Congress’ vision.
“Dave Kappos has done a terrific job of helping to shape and implement the administration’s innovation agenda. His three-and-a-half year tenure is marked by many notable accomplishments which have helped improve the IP system both here and abroad,” said Acting Commerce Secretary Rebecca Blank. “We are fortunate to have had Dave on our leadership team. We all benefited from his deep knowledge, strong management skills, and passion for the issues before the USPTO. I thank him for his distinguished service.”
Now speculation will turn to who will be Kappos’ successor. Early speculation is already centering around soon to be former Congressman Howard Berman (although if Ambassador Rice leaves the UN look for Berman to also be on the short list for Ambassador to the UN), Todd Dickinson (former USPTO Director under President Clinton and the current AIPLA Executive Director), Victoria Espinel (current IP Enforcement Coordinator), Bob Armitage (the soon to retire General Counsel of Eli Lilly) and Deputy USPTO Director Teresa Rea. Regardless of who will occupy Kappos’ chair next, barring any unforeseen circumstances Rea will at least temporarily become Acting Director upon Kappos’ departure. Should Rea likewise step down next in line would be Commissioner for Patents Peggy Focarino.
In the meantime, Director Kappos will stay in charge for approximately another two months. It will be sad to see him go. While I cannot speak for the entire patent community, I suspect the overwhelming majority of patent attorneys and industry stakeholders will agree with me when I say that I hope whoever is next will possess the same understanding of the patent and innovation industries as Director Kappos.
As more information becomes available please check back here for the latest on this breaking news story.