UPDATED: Jan. 22, 2013 at 11:43am (see comment #2)
Today President Barack Obama publicly started his second term in Office with a celebration in Washington, DC, marked by his second inaugural address to the Nation. Unfortunately, it doesn’t seem that President Obama will mark his second inauguration quite the way that President Abraham Lincoln did with a grand ball held at the United States Patent Office in the model room, but today is a very special day in America. We transfer power without a shot fired, which can’t be said for a great many places in the world. Soon we will turn from celebration back to partisan politics, if that hasn’t happened already.
One of the things that President Obama will be faced with in his second term, which I understand he was not expecting to have to deal with, is selecting a new leader for the United States Patent and Trademark Office.
On November 26, 2012, news broke that David Kappos, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, would be stepping down and leaving the agency effective the end of January 2013. In fact, Director Kappos’ last day as Director will be January 31, 2013. At that time the mantle of leadership will pass to soon-to-be Acting Director Teresa Rea.
During his tenure at the USPTO, Director Kappos 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 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 late January or sometime 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.
But if you ask me the Kappos legacy is not going to be the America Invents Act. The Kappos legacy will be that he managed to put the USPTO back on track. The agency is open for business and is issuing patents. It is odd to say it, but the USPTO had become so dysfunctional over the years that the allowance rate had slipped to never before seen lows. The feeling was that the USPTO was the “No Patent for You Office,” which did nothing to help foster the growth of innovation, and more importantly jobs. Just take a look at where Director Kappos found the USPTO when he joined the Obama Administration, which based on the below graphic taken from a USPTO powerpoint presentation in early 2009 showed the enormous decline in allowance rate.
Director Kappos and his very capable team changed this and has returned the USPTO to a “Patents are possible Office.”
In preparing to write this article I reached out to my friends at PatentAdvisor to see if they could crunch some numbers for me. PatentAdvisor, which is powered by PatentCore, provides instant access to comprehensive and dynamically updated performance data for nearly every U.S. patent examiner and art unit. I asked if they could go through all the files they have in their database and tell me what the allowance rate looks like based on the statistical sampling of case files and histories in their database.
So PatentAdvisor went back through all the case files in the PatentCore database for 2011 and 2012 and found 843,793 application histories loaded into their system. The aggregated data shows:
- 560,529 allowed patents during 2011-2012
- 193,687 abandoned patent applications during 2011-2012
- 89,567 RCEs pending during 2011-2012, which have not yet having received the next office action
Hopefully everyone will agree that a sample size that is 843,793 applications is statistically significant, particularly given in any given year there are approximately 500,000 applications filed.
What do these numbers mean about the Kappos era? If you don’t consider the RCEs the allowance rate is 74.3%. If you factor in the RCEs that remain to be examined and assume that each of those count as an application that will not be allowed then the allowance rate drops only to 66.4%. Of course, it is a virtual certainty that many of those RCEs will ultimately wind up being issued as patents.
This means that Director Kappos and his very capable team have restored the USPTO to where the Office has typically been, which is between a 65% to 70% allowance rate.
But even Director Kappos’ significant efforts to reduce the backlog will likely not be that which marks his legacy. As any objective observer will recognize, the Patent Office had been run straight into a ditch under the Bush Administration. There are a lot of reasons for that, which we have gone through over and over again over time. There was no malicious actors, but bad choices and reactive policy. Still, the patent system ceased to function as it had throughout history and was a drag on the economy and job creation specifically.
Job one for Director Kappos was not to reduce the backlog, but rather to get the Patent Office out of the ditch. To further the metaphor of the USPTO being driven into a ditch, it is perfectly correct to observe that the car really did need to be rebuilt from the ground up before the Patent Office could even start to drive up the embankment. That means that before anything could really be turned around, the internal processes needed to change. But most importantly, attitudes needed to change.
Once upon a time the patent bar felt as if the USPTO would blame us for everything that went wrong. During the claims and continuations debacle there were over 600 comments submitted, an all-time high, and each and everyone were summarily rejected. The USPTO didn’t find a single good idea in any of the considered, thoughtful comments of the patent bar? Nothing? Outrageous!
That changed when Director Kappos took the helm. He is a patent attorney and he consistently said at every chance that neither he nor anyone on his team had a monopoly on good ideas. He asked for fresh new ideas from the patent bar and stakeholders. With a cautious optimism the patent bar and stakeholders responded, and Kappos was true to his word. As comments would come in relative to various proposed rules packages the USPTO would seriously and truthfully take those comments into consideration. The USPTO would adopt suggestions of the bar and stakeholder community, make changes and tighten things up.
Most significantly the USPTO completely re-wrote the Oath and Declaration rules necessary for phase II implementation of the American Inventors Act because there was near complete unanimity in the community that there was a better way. Talk about responsible, responsive government. The people who use the system spoke, suggested an equally viable alternative that they preferred and the Patent Office gave us what we wanted. That level of cooperation was unthinkable during the Bush Administration, where the USPTO acted the part of a 3rd grade teacher and treated the entire community as a bunch of insolent juveniles who all deserved to lose recess because of the actions of a few bad apples.
Under the leadership of Director Kappos the USPTO has been healed. He has worked diligently to dent the backlog of cases, but he had to spend a lot of time fighting battles over funding and resources. The corner has turned relative to the application backlog and also ever so slightly with respect to the appeals backlog. But it will be the Directors that follow that will see the difficult work of Team Kappos pay dividends. The most noticeable changes to the backlogs will occur in the coming year and years, but those would not have been possible without the foundation laid by Director Kappos, which I am convinced would not have been possible without a change in attitude. In short, the environment is different and the agency is a far better place.
For me it will be these intangibles that define the Kappos era. Not glamorous perhaps, but the turn around job pulled off by Director Kappos is really nothing short of miraculous. Indeed, Senator Coburn, a Republican, said the following to Director Kappos during one hearing in mid-2012:
Director Kappos, thanks for being here. Thanks for the great job that your group are doing. One of the things I would like you to consider no matter who wins this next election is staying on in your position. I will lobby for you no matter who the President is. I think the continuity is important for this Office.
Indeed, Coburn would go on to explain that the way Kappos and his senior team were running the Patent Office was an exemplar for exactly how a government agency ought to be run. Now, if that type of laudatory praise of an Obama appointee by the most fiscally conservative Republican in the Senate isn’t evidence of miracles I don’t know what is!
Director Kappos will be missed. The President has his hands full in terms of selecting a replacement. Thankfully, there are those in the patent community who are certainly well capable of picking up and running with the ball.