In Capable Hands: Profiling the New Leadership at the PTO

Today is the last day of the Kappos era at the United States Patent and Trademark Office. Director Kappos assumed control of the Office in August 2009, and three and one-half years later he is leaving the Office a better place, with virtually all metrics pointing in the right direction. The backlog of applications is down, the backlog of appeals has started to fall, the most sweeping patent reform in generations has passed, the USPTO has promulgated volumes of new rules to make the patent system better and to implement the America Invents Act, there has been a Memorandum of Agreement signed with the Smithsonian on the Innovation Expo, which will be held in June 2013, and the future Innovation Pavilion that will be housed at the Arts and Industries building, a new examiner count system was put in place revising the production goals and time given to examiners for the first time in more than a generation, the patent bar examination was updated for the first time in 5  years and continues to be updated every six months. The accomplishments are many. These are but a few that leap to mind at the moment.

But how will the Patent Office fare when the clock strikes 12:00 midnight later tonight and Director Kappos becomes private citizen Kappos? The USPTO will be in very capable hands. One of the biggest accomplishments of the Kappos Administration happened behind the scenes but oddly in plain view. I speak of “Team Kappos” regularly. It is because they are a team in a very real sense as far as I can tell. And while the assembly of the team was done in the public eye and those interested enough know who Kappos’ top lieutenants have been, Kappos quitely assembled an extremely talented team of dedicated, hard working individuals who will capably carry on.

Before profiling the top officials who will continue the work of the patent system, allow me also to pause and recognize a truly extraordinary moment in Patent Office History. The top three officials at the USPTO will all be women. Acting Director Teresa Rea, Commissioner for Patents Peggy Focarino and Commissioner for Trademarks Deborah Cohn will lead the Office forward steering America’s engine of innovation and commerce. If that doesn’t create a buzz of excitement even in Washington, DC, I don’t know what will! It is excitement well deserved and perhaps could lead to a higher profile for the USPTO, which would be very good for the patent system as a whole.

[Varsity-1]

 

Teresa Stanek Rea, Acting Director
United States Patent and Trademark Office

In December 2011, after I concluded an interview with Director Kappos I asked him to give me some thoughts on his Senior Management Team, in anticipation of interviewing members of that team as a part of our USPTO 2.0 series. “When I say ‘Teresa Rea’ what are the first things that come to mind,” I asked. Kappos responded: “Tremendous background knowledge, energy, fun person to work with and to team with, deep knowledge of the life sciences sector…” Director Kappos would go on to say that with Rea at the agency “we’ve got all the bases covered. I’m the corporate guy, she’s the litigator. I’m the IT guy, she’s the Pharma person.” Indeed, Teresa Rea is the real deal. For several years she has been the near perfect compliment to Director Kappos, providing biotech and pharma knowledge to compliment Kappos’ IT expertise.

Rea is also no stranger to the intellectual property world. She is a former President of the American Intellectual Property Law Association (AIPLA), and a long time patent practitioner, having been admitted to the patent bar on December 15, 1981. Prior to joining the USPTO, Rea’s practice focused on complex patent litigation and inter partes matters, as well as patent procurement and portfolio management, including patent preparation and prosecution. Rea also has experience in drafting infringement and validity opinions, as well as interference, and licensing matters.

One of the things that makes her particularly well suited for the job of Acting Director is that the biggest issues facing the patent system at the moment are in the life sciences and biotechnology sector — think Prometheus and Myriad Technologies, for example. The Supreme Court will her Myriad this term and issue its decision by the end of June 2013. Having someone in the lead chair intimately familiar with the realities of practice and the workings of government will serve the Office well as guidance is given to patent examiners.

I have had the opportunity to interview Acting Director Rea twice.  See January 2012 interivew and February 2011 interview. In those interviews I found her to be extremely knowledgeable, indeed a real patent geek. A geek in a good way, of course. Patent professionals know what I mean. Many of us enjoy what we do, but infrequently get to talk to anyone about it who cares, so when we do the conversation is a blast. She is one of us. She has represented clients before the USPTO and in litigation, she has represented the industry as part of the AIPLA, and she has worked side-by-side in partnership with Director Kappos for two years. The Patent Office has been left in capable hands.

 

Peggy Focarino, Commissioner for Patents
United States Patent and Trademark Office

Margaret A. (Peggy) Focarino has been a long time employee of the United States Patent and Trademark Office, first starting with the USPTO in 1977 as a Patent Examiner.  She became a Supervisory Patent Examiner in 1989 and was promoted to the Senior Executive Service in 1997.  In January 2005, Focarino was promoted to Deputy Commissioner for Patent Operations, a role that made her responsible for all patent-examining functions in the eight Patent Technology Centers and all operational aspects of patent application initial examination, patent publications, and international Patent Cooperation Treaty (PCT) applications processing.  Upon the resignation of Jon Dudas from the USPTO in January 2009, then Commissioner for Patents John Doll rose from his post as Commissioner for Patents to become the Acting Director of the Patent Office.  At this time Focarino was promoted to Acting Commissioner for Patents. Upon Director Kappos assuming control of the Patent Office, Focarino was retained on the senior management team, with the creation of a new position — Deputy Commissioner for Patents. Subsequently, after Commissioner Stoll retired, Focarino was promoted, this time being appointed Commissioner for Patents.

When I interviewed USPTO Director David Kappos in December I asked him about Focarino and the first words out of his mouth were: “What a wonderful leader.”  Kappos went on to tell me:

Peggy’s the perfect next Commissioner for Patents. She’s got deep knowledge of the agency, extremely well respected in the IP community, rose up through the ranks, knows everything about patents and patent law and patent examination and works extraordinarily well with employees. She’s loved and she’s revered by the employees, not just respected. And if that weren’t enough, works terrifically well with the union. So Peggy’s the perfect package. She’s got tremendous judgment. She knows how to deal with people, she knows how to deal with issues, she’s very diplomatic and just a wonderful leader. I’ve been doing leadership for a long time. I’ve worked with and studied under some of the best leaders in the world and I know a good leader when I see one and Peggy is certainly one.

This lofty praise is consistent with what I have heard about Focarino many times over the years.  Indeed, I have only heard positive things about Focarino, and everyone expresses that she is not only a very nice person but a knowledgeable and respected leader within the Office.

One particular story deserves mention. When Director Kappos set out to attempt to revamp the examiner count system there needed to be hard work done with the union to negotiate. The union was a willing partner, but no negotiations over work responsibilities are ever easy. Kappos put Focarino in charge of working with the union in her role as Deputy Commissioner at the time. What could have taken 6 months to a year was negotiated in 6 weeks. A new examiner count system gave examiners more time to work on cases, credit for engaging in interviews with attorneys and incentive to not constantly require RCEs. While the Office still has some issues with RCEs, the new examiner count system was the first rework in at least a generation and was an important step forward. It simply could not have been negotiated with such speed but for the hard work of Focarino, the willing participation of the union and a trust built up over years between the two. Simply said, in my opinion Commissioner Focarino is the right person for the job. She knows the Office top to bottom and is a hard working doer who leads by example.

I have also interviewed Focarino several times. See May 2009 interview and January 2012 interview.

 

Deborah Cohn,Commissioner for Trademarks
United States Patent and Trademark Office

Deborah Cohn is the Commissioner for Trademarks at the United States Patent and Trademark Office. Cohn oversees all aspects of the USPTO’s Trademarks organization including policy, operations and budget relating to trademark examination, registration and maintenance.

Commissioner Cohn joined the USPTO in 1983 as a trademark examining attorney and rose through the ranks to managing attorney and group director before becoming Deputy Commissioner for Trademark Operations in 2006. She also served as Acting Chief Administrative Officer for the agency from October 2007 to April 2008 and from May to September 2010.

While I know Commissioner Cohn, she is the member of the management team that I know least well. There is a saying about knowing more and more about less and less until you know everything about nothing. Well, over the years I have continued to focus on patent law to the expense of other areas of intellectual property law. I know what trademarks are, I know how important they are, and IPWatchdog is trademarked. A trademark expert, however, I am not. Thus, when I interviewed Commissioner Cohn I reached out to two attorneys at my firm who do a significant amount of trademark work — Mark Malek and Mark F. Warzecha — to ask for suggested questions for Commissioner Cohn. Commissioner Cohn was gracious and tolerant of this patent attorney slash blogger-journalist, and I believe our conversation was a good read.

What I can say specifically about Commissioner Cohn is that she overseas a finely tuned machine, which is the Trademarks operation at the USPTO. There are rarely, if ever, any problems with the Trademark operation. Indeed, no news is good news and the fact that Cohn has Trademarks running so smoothly is a blessing that will allow others on the team to focus on other issues that need attention.

Cohn has been at the helm for some time now and hopefully she will remain. As long as Cohn is running Trademarks Acting Director Rea will have no problems, and neither will whoever is the next Director. To explain it like an engineer — Trademarks isn’t broken, so don’t fix it, just let it be and let Commissioner Cohn and her capable team continue their work.

 

Peter Pappas, Chief of Staff
United States Patent and Trademark Office

On November 10, 2011, Peter Pappas became Chief of Staff to Director Kappos. Pappas, however, had been at the USPTO since early on in the Kappos Administration, serving as Chief Communications Officer initially. Even in the role of Chief Communications Office Pappas was one of the highest ranking lieutenants on Team Kappos. Pappas has a long list of government service as an attorney and political adviser. He has served as a liaison between the USPTO and the rest of the federal government. While that may not seem like an important role to some, Pappas’ role has been critical. Coordination with the Department of Commerce has been what has allowed the Patent Office to accomplish so much.

Once upon a time Pappas served in the Clinton White House as an Assistant Counsel to the President. After leaving the White House Pappas became Director of Communications for Economic Affairs at the State Department. Subsequently, Pappas was tapped to become Associate Chief of the Federal Communication Commission’s International Bureau, overseeing international telecommunications policy in several areas, and being principally in charge of the Bureau’s Congressional and media relations. Immediately prior to his appointment at the USPTO, Pappas served an Executive Vice President for Legal and Government Affairs at Pappas Telecasting Companies, which was at the time the nation’s largest privately held commercial television station group with 27 affiliates in 15 markets nationwide. In that role, he managed the legal and regulatory affairs of the Company and served as its primary spokesperson.

Early on in President Obama’s Administration it was clear that his Department of Commerce viewed the USPTO as a crown jewel. Even President Obama has mentioned patents and the Patent Office in more than one speech, something of a Presidential record if not an outright shocker. In fact, President Obama gave one entire speech on the need for the USPTO to have state of the art computers and IT systems. Certainly President Obama deserves credit, but it is also important to recognize those at the Patent Office who are familiar with government and how it operates. That allows any agency more ability to affect positive change. Pappas has been an important player on Team Kappos.

Pappas will remain at the USPTO even after Kappos departs. It is expected he will continue on in the same capacity. I have heard idle speculation by some that his influence may diminish once Kappos leaves. I find that entirely unlikely. If possible, he will likely become an even more important player. While Acting Director Rea has all the industry experience anyone could ever ask for in a Director, she doesn’t have an excessive amount of experience on Capitol Hill. Working with AIPLA she has testified before Congress, but the primary job of the Deputy Director under the Kappos Administration was not testifying or making rounds on Capitol Hill. Thus, having someone as politically savvy as Pappas on the team will be good for Rea, which means it will be good for the Patent Office and the patent system generally.

Like all of the most senior members of Team Kappos, I have interviewed Pappas. See Exclusive Intervoew: USPTO Chief of Staff Peter Pappas.

 

Bernard Knight, General Counsel
Ray Chen, Solicitor
United States Patent and Trademark Office

Bernie Knight and Ray Chen, the top two attorneys who represent the United States government at the U.S. Patent and Trademark Office.

Knight is the General Counsel at the USPTO, and Chen is the Solicitor.  I have known each for a few years now, and I can’t tell you how many times I have asked them to go on the record for an interview. I finally convinced them to be interviewed jointly in August 2012.

Knight started his career as a tax lawyer at a large Houston, Texas, based law firm. From there he went to the Justice Department as a litigator trying tax cases.  Subsequently, while Todd Dickinson was Director, Knight was hired to be the first Deputy General Counsel of the USPTO. Knight then left the USPTO for a time.  He applied for a job at the Treasury Department, to be a Deputy Assistant General Counsel.  That job went to an internal candidate, but Knight impressed folks at Treasury and was offered a more senior position as Assistant General Counsel for General Law, Ethics, Litigation, and Regulations.  Then at the end of the Bush Administration Secretary Paulson had to pick one of the senior lawyers to be the Acting General Counsel of the Treasury Department until a new General Counsel could be selected by President Obama and confirmed by the Senate.  Secretary Paulson picked Knight.  He was Acting General Counsel at Treasury for the first about eight months of the Obama Administration.   Newly confirmed Director Kappos asked Knight if he would like to come back to the USPTO to be the General Counsel, the position he holds currently.

Chen is a hard core patent guy. He told me that when he left law school he knew he was going to be a patent attorney and never leave California. But love got in the way. His girlfriend, now wife, took a job in Washington, DC. The prompted Chen to seek employment in the DC area. He applied to the Federal Circuit for  a staff attorney position, which he obtained. He noticed that there were young lawyers from the USPTO advocating appeals before the CAFC and that was what he ultimately wanted to do. So he applied for a job in the Solicitor’s Office at the USPTO and the rest is history. Chen rose through the ranks to become Solicitor, the man in charge of USPTO arguments and appeals. Chen knows patent law as well as anyone I know, and I have heard rumors that he is being vetted for possible appointment to the Federal Circuit. He would make an excellent judge on the Federal Circuit, but in the meantime the USPTO has a real superstar Solicitor.

 

Chief Judge James Smith
Vice-Chief Judge James Moore
PTAB, United States Patent and Trademark Office

Chief Judge James Moore and Vice-Chief Judge James Smith are the top two Administrative Patent Judges at the United States Patent and Trademark Office. I had the honor of interviewing them together in an interview published on January 1, 2013.

The PTAB was newly created on September 16, 2012, to replace the Board of Patent Appeals and Interferences. The name has changed to take into account the new workload on so-called post-grant procedures ushered in by Phase II of the America Invents Act, which went into effect on September 16, 2012. The Board, however, is still the Board, and Smith and Moore have been at the helm in charge of unprecedented growth in the number of Judges.

I have known both Smith and Moore for some time and have the utmost respect for both men. I continue to hear rumors that Chief Judge Smith may be in line for consideration for an appointment to the Federal Circuit, which speaks volumes about his ability but also what those in high places think of him and his work. Could we see Smith on the Federal Circuit soon and Vice-Chief Moore become Chief? I wouldn’t doubt it one bit. Both men are talented administrators who I suspect have great things to contribute to the USPTO and the patent system generally.

 

The Rest of the Team

I have focused my attention so far on those I have interviewed and know the best. There are, however, several other key players that deserve to be mentioned. For example, John Owens is the Chief Information Office and he and his team are overseeing an enormous update to the USPTO IT systems. The crown jewel will be Patents End2End, which I have seen unveiled in prototype at a public meeting at the USPTO. This is going to revolutionize how examiners work, making them more productive. That will allow them to do tasks more quickly, but the plan will not be to ask examiners to do more applications. Thus the productivity savings will translate into more time to examine, which will lead to higher quality patents.

Still another that could be mentioned is Shira Perlmutter, Chief Policy Officer and Director for International Affairs, whom I am scheduled to interview soon. Prior to joining the USPTO Perlmutter was Executive Vice President for Global Legal Policy at the International Federation of the Phonographic Industry (IFPI). Prior to that, she held the position of Vice President and Associate General Counsel for Intellectual Property Policy at Time Warner.

Still further, Todd Elmer, Chief Communications Officer, is an attorney who spent time working as an international trade attorney at the U.S. Department of Commerce and in the Washington, D.C. office of Kaye Scholer. He has also served as a member of White House advance teams for President Clinton and Vice President Gore, and served in a variety of leadership capacities in the 2000, 2004, and 2008 Democratic presidential campaigns.

 

Conclusion

As a Republican it pains me in some ways to say it, but President Obama’s election has been objectively positive for the United States Patent and Trademark Office. I don’t know that the innovation industry could have survived had the leadership of the USPTO during the Bush years been extended any further. But long gone are those days and over the last 3+ years Director Kappos has not only accomplished much, but he has put in place a team of highly capable, very experienced individuals.

The legacy of a leader is what will happen after the leader is gone. Perhaps it is not surprising that Kappos, who spent his entire career at IBM prior to joining the USPTO, has left the Office with such a strong leadership team in place. The way that IBM succeeds is by growing leaders from within who understand the culture and are dedicated to the company, occasionally hiring highly qualified outsiders to bring in fresh new ideas. That approach has served Kappos well, and it leaves us all in a very good place. I am optimistic about the future.