When conducting interviews I sometimes get a sense for whether the interview will be a good one once transcribed. Those who have helped me transcribe the interview and review it prior to publication (as we do with all interviews) tell me that this is a good interview. You will have to be the judge of that. I confess to being incapable of being objective.
Although I do write what I believe to be objective news articles from time to time, I am an opinion columnist. I am also an ardent believer in the patent system. The Kappos era at the USPTO also largely coincides with the time frame where I started to write daily (sometimes more). I attend public events at the USPTO and have interviewed Director Kappos several times and most of his top lieutenants. I have gotten to know Director Kappos and have seen first hand what his leadership has meant to not only the USPTO, but to the larger patent system in general. He has been a friend to the patent system and in my opinion is leaving the Patent Office far better than he found it. He will be sorely missed when he leaves at the end of the month, although he will leave with an excellent management team in place to carry forward the work for which he has laid the foundation.
Without further ado, here is my finale interview with USPTO Director David Kappos.
The Road Forward: Software Patents in the Post-Alice Market
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QUINN: Thanks, Director, for taking the time to chat with me today on this. I suppose for you a happy occasion, for the rest of us in the patent world maybe not so happy occasion is my exit interview with you. And I just wanted to, if I could start and just throw it open I think it might be a good time to ask you, could you take a look back on where you’ve been the last three and a half years and what you’ve accomplished and do you have a sense of completion or satisfaction? And you can I suppose take that in any direction you might want to go.
KAPPOS: Thanks, Gene. When I came to USPTO I actually had a list of the things that I wanted to accomplish. And it included getting a handle on the backlog of unexamined patent applications, helping to get patent reform enacted and implemented, and restoring the dignity of the USPTO. Those are my own words, but I had felt like through the sequence of things that had happened the last few years before I came to the USPTO, like the agency was really kind of down and out in way thanks to things like the Tafas litigation and issues of patent quality. So if you look at the situation now like I do, you’d say, well, I pretty much got ‘em done, right? We got the legislation done. We’ve implemented it. I’ve signed all the rules and they’re all going into effect here in the next few months. And we’re now one of the best agencies in the entire federal government. We’ve come all the way from 172 out of 292 federal agencies, so we were sort in the bottom quartile, and now we’re number five. We’re one of the very best. So I think it’s fair to say the agency’s doing pretty well, has got a good sense of its worth, and folks like working here. So, yeah, I came to do some things and I did them.
QUINN: Looking forward, I suppose the question that everybody is interested in knowing, and I don’t know whether you know yet, but where do you see yourself? Do you know where you’re going? Are you going to take a vacation for a while to try to figure that out like some folks have done after they’ve left the office? Or what’s in store for you?
KAPPOS: Well, I don’t know where I’m going yet, but I do know that I’m not a take-a-vacation kinda guy. So I’m going to take off only as much time as I need to figure out what to do next.
QUINN: Okay. When is your last day at USPTO?
KAPPOS: My last full day in the office is the 31st of January. I’ll come in the next morning, the First of February, to turn in my badge and complete the exit process.
QUINN: I remember back when I interviewed Teresa Stanek Rea right after she joined the office as Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the USPTO, and she joked about how she had to turn in her registration number. But she said that she was assured that she would be getting it back once she was no longer at the office. Now that you are leaving, does this mean you will get your registration number back?
KAPPOS: Yes. That’s right.
QUINN: Is there a process that you have to go, or do you just automatically jump right back onto the rolls?
KAPPOS: Well, I’m not aware of any process you have to go through. As a federal official I’m subject to a number of important recusals. So I can’t just come back into the USPTO and start interviewing cases or anything like that. I’m actually prohibited from interacting with the agency at my instance for a period of time, in some areas for two years and in other areas for one year.
QUINN: Okay. So it’s not like you’re going to hit the ground running with the registration number being back right in the middle of the thick of things?
KAPPOS: Not anything that’s subject to the recusal. I have to follow that carefully.
QUINN: Right, right. You were in the corporate world for pretty much your whole career, right? You started with IBM as an engineer, correct?
QUINN: And now you’ve been in government. Are you thinking about going back to the corporate world, or would you like to maybe try the private practice? What have you learned about your likes and dislikes are?
KAPPOS: I’m exploring a lot of different options right now. I’m hoping to find something that presents the best overall opportunity for me to add value. I obviously would like to land in a place that enables me to continue participating in the discussions about the intellectual property environment, intellectual property system. So I’m basically looking for the best platform from which to do that.
QUINN: Okay. And I know that you and as I’ve taken to referring to you guys, team capitalists, work very close together and I think that that’s great. So it wouldn’t probably be that you would have a conversation with Terry any different than you would maybe on any other day. But assume for a second that you were turning over the reins to somebody who maybe wasn’t intimately knowledgeable. What would you say to that person are the maybe two or three big things that you think that you wanted to advise them to keep their eyes open for over the next year?
KAPPOS: There would be a couple of things that I would suggest to my succesor. One is to listen to the employees. You have to get to know patent examiners, and trademark examiners, and quality assurance specialists, and techs, and paralegals, and lawyers in the solicitor’s office, and judges and the board. One of the most important things you can do is to get to know and listen to the employees directly so you get unfiltered information about exactly what’s going on and what you need to do to help. The other, Gene, that I would say is to view the labor unions as partners and work with them toward a common mission of improving the agency. If you view the unions that way and work with them in that spirit, they will reciprocate, and you’ll be able to get a lot done that benefits the employees and the agency.
QUINN: Now substantively, though, what issues would you say are going to become a front burner issue over the next six to twelve months?
KAPPOS: Well, software patents come to mind first, the whole software field. As you know we’ve done a lot in that area. But it continues to be a point of stress in the popular media and in the courts. That will be a continued focus for the agency and this is why we’re moving forward with roundtable meetings in Silicon Valley and in New York in February, and seeking comments through a new partnership program. Second, the Administration and the USPTO will push to make works of authorship available to the blind and print disabled community. That’s really, really important. It’s important as Americans, it’s important as human beings, and it’s important to show that when we talk about a strong and balanced IP system we mean it. So that’s a substantive, really important and challenging matter that we’re going to be focusing our attention on in the next six months. The third thing I would mention is getting the transition to first-inventor-to-file to go smoothly. And you know the MPEP needs to be updated. It’s now being outrun by the laws, the regulations, and even our qualifying exam. So the next several months are going to involve a lot of, if you will, doing the detail work to get the last of AIA in place and operational, and getting the public fully up to speed on how to deal with all of this. Especially the independent inventor community and the small companies who don’t otherwise have access to as much legal support. Then of course there’s the CPC, which we’re now implementing, and more substantive patent law harmonization. We’ll continue to bring the backlog down and reduce the backlog of cases in front of the Board of Appeals. Lots of things that are going on that will continue and will be important to keep further improving the agency. Those are going to be some of the key substantive challenges over the next several months.
QUINN: Do you wonder whether you’re going to miss this? And the reason I ask that is when I interviewed—one of the first time I interviewed Todd Dickenson I think it was, he told me, I think he told me that it was one of the coolest jobs he’d ever had was being director because he really felt like he was on a day-to-day basis able to make a difference for the better in something that was extremely was important to him, which is the patent system.
KAPPOS: Yes, well, I would agree with Todd on all of that. In this job you’re able to make a difference. You’re able to have a tremendous amount of impact, hopefully positive impact. It’s a great job, it’s a great opportunity and I think, I don’t doubt that I will indeed miss the people, the challenges, the opportunity and the impact, all of it.
QUINN: So now when you look at, and I know we probably don’t have all that much more time, so I just want to make sure I get this in. like if we were to do a history of the patent office and look at all the different directors, and before the directors the commissioners and each of them had maybe a couple of sentences just to talk about what their legacy is, or how they would hope their legacy would be remembers, what things would you point to? I know you’ve already pointed to a number of things that you’ve accomplished, but I wonder which one of those things you would point to and hope that people remember for?
KAPPOS: You know, Gene, in my view I would hope that with this era of the USPTO, it’s not about me, it’s about the agency and about the institution. That’s what I learned in all my years in the private sector, it has to be about the institution and not about any specific person. I would hope that this era of the USPTO is actually remembered not for any one accomplishment, or even two accomplishments, but for a dizzying array of undertakings that have been accomplished. I mean things that we’ve all almost forgotten by now but seemed impossible four years ago. How about the count system? How about the performance appraisal plans for examiners? Then techs? Then managers? Then executives? How about Track One? How about the interview programs? Getting the backlog to stop going up, let alone down to 700,000, let alone to 650,000, let alone to 600,000 and then going even below that. We doubled the PPH in a year, and then doubled it again a second year, and nearly doubled it again a third year. I mentioned CPC already. There’s an incredible list of things that we’ve taken on, and that’s what I hope this era will be remembered for. It’s like the song, it’s a little bit of everything that makes for a successful enterprise, and that’s what we’ve done at USPTO.
QUINN: Yeah, I think so. I think whenever I talk about it for whatever it’s worth this era, the one thing that is extremely different, and it’s been different ever since you’ve been there I think is this feeling that the patent office and the patent bar are not at odds. The stakeholders are not the enemy. There is an openness and willingness to communicate both from the patent office and then that breeds the willingness to communicate and participate from the patent bar. And there’s been a ton that’s been accomplished. But I wonder whether any of these things, or many of them, some of them would have been accomplished, but whether many of them could have been accomplished without that different tone being set.
KAPPOS: Well, I think that’s a good point. Outreach to the community and listening is essential. Think about the incredible number of meetings we’ve held, the AIA road shows alone. Those are bone grinding. But people like Janet Gongola, Peggy Focarino and Terry met with stakeholders across the country. If I were to sum it up in one thing that I feel has caused all of these things to happen, it’s a single word and that word is “leadership.” And that’s the theme that links together everything that we’ve been talking about, leadership.
QUINN: Yeah, and I know that in the patent office that starts with you. But you’ve had some good partners in the Department of Commerce, and the President has actually given a speech or two about patents which is something extraordinarily new. I think it’s very important though. Do you have anything to say about your partners at Commerce? You want to talk about them just a minute?
KAPPOS: Yes, indeed. We’ve been very fortunate to have a president who gets it and who cares about innovation, and therefore cares about the drivers of innovation, which are rooted significantly in the patent system. Our colleagues in the White House have been fantastic teammates on moving forward everything we’ve done. Our colleagues in the Department of Commerce have been great teammates as well. And our partners on the Hill, you know, in an era in which there have been a lot of challenges, it’s been great to have Congressional partnership that spans all sides of the political spectrum. Those folks have all been partners with the USPTO and in many cases have themselves helped to lead us forward.
QUINN: Okay. I could keep going, but I know that I had agreed that we would keep this short. I suspect you probably have a busy schedule today.
KAPPOS: Well, Gene, it’s always great to talk.
QUINN: It’s been a pleasure. And I just would like to get one thing on the record. I really appreciate all of your willingness to talk to me and I know you’ve talked to many others in the press and in the blogosphere and you’ve treated me, as a blogger and other bloggers, as an equal within the press and I can’t thank you enough for that. And it’s been a pleasure and it’s going to be sad to see you go. I hope we stay in touch and I look forward to whatever you have next in store for your career.
KAPPOS: Thanks Gene. And for my part I will also say on the record that you’ve been a great steward of the system. You’re a guy who calls it like you see it. You don’t put spin on it. And I’ll tell you what, in a world where everyone seems to have an agenda – and unfortunately the agendas frequently get ahead of the facts – and where the media and all of its components, including the bloggers are going to have a strong tendency to want to put spin on things, you’ve been one of the bright stars that has instead taken that objective view and been honest, candid about things, good ones and bad ones. But it has really been a breath of fresh air to have you following USPTO and calling ‘em like you see ‘em.
QUINN: Well, thank you very much. That means a lot to me. And I will continue to try and do that. Although like so many others in the patent community I’m very sad to see you go. I’m sure Terry will do great. But I appreciate everything that you’ve done for this system.
KAPPOS: Thank you. Terry will do a great job and you and everyone else will be there to help her and make sure that she continues to drive further success here. So thanks again, Gene.