The Washington Post recently reported that the anticipated nomination of Phil Johnson to head the United States Patent and Trademark Office is dead. News of the death of Johnson’s nomination is both a shocking surprise and yet all too predictable in a town that increasingly makes little logical sense. Johnson is extraordinarily qualified, he is willing to take the position, he has seen the patent system from virtually all vantage points, and yet his nomination has stalled after many months of vetting and no legitimate red flags surfacing.
It seems that Johnson’s major flaw may be that he strongly supports the patent system, which is a very sad commentary. In fact, there are some starting to believe that the only candidate that may be acceptable to certain political forces is one who opposes the patent system on a fundamental level. Of course, such a candidate would be unacceptable to a great many other powerful industry interests, so this could mean that the USPTO will indefinitely be without a politically appointed and confirmed leader, at least unless the White House is willing to step up and make a nomination.
I am on record supporting the nomination of Phil Johnson, and simultaneously pointing out that the proffered rationale used by his detractors is factually false. Those suggesting Phil Johnson hasn’t been supportive of patent reform efforts are simply misinformed. In fact, you would be hard pressed to find anyone in the private sector who has been more supportive of patent reform over the last 8 to 10 years. In fact, Johnson was a strong supporter of the American Invents Act (AIA), which has been one of President Obama’s signature accomplishments. Johnson was also a strong supporter of fee-shifting legislation. Stay tuned for more on Johnson’s support of patent reform efforts in the coming days and weeks.
From what my sources are telling me, Johnson’s nomination is dead at the moment, but there have been no bridges burned. However, absent the White House reconsidering and moving forward with a Johnson nomination he will not be the next Director of the USPTO. From what I have pieced together so far all of this seems to translate as follows: Johnson has opposition on the Senate Judiciary Committee not inside the White House. Given that Johnson, like the overwhelming majority of the industry, was against expanding covered business method (CBM) review it is easy to speculate where that opposition is coming from, but more on that in the coming days and weeks.
In any event, on July 3, 2014, I sat down on the record with Paul Michel, former Chief Judge of the United States Court of Appeals for the Federal Circuit. A portion of our discussion centered around what everyone believed at the time was the imminent nomination of Phil Johnson to be the next Director of the USPTO. As you will see below, Judge Michel thinks very highly of Johnson.
Without further ado, here is a piece of my July 3, 2014 interview with Judge Michel —
QUINN: Yes, I agree. In talking about this we have started to go down the path of patent reform and is Congress going to get back into the patent statute again. And I think you and I both agree that Congress is in the perpetual business of patent reform on some level, or at least being asked for patent reform. But before we go to that there, happening right now over the last week or two more so in the public eye is discussion about Phil Johnson and whether he’s going to wind up getting the nod or nomination from President Obama to become the Director of the USPTO. And I know Phil a little bit. I know you know him probably a lot better. I think he would be a great choice. But he’s got detractors that are out there saying things like he’s against patent reform. Which is just not true. And they’re saying that he is potentially anti-patent, which is absurd. How could the chief IP officer of a pharmaceutical company ever be accused of being anti-patent? So, one, what are your thoughts on Phil and what he would do in the job as Director? And two, what do you think about the detractors?
MICHEL: Well, I think Phil Johnson would be an ideal choice to head the patent office. I can’t think of anybody would be better. The advent of the leadership that David Kappos brought to the patent office was a desperately needed shot in the arm for the office and resulted in many, many improvements. I would predict that the Phil Johnson era, if there is one, will carry that forward and probably even expand on that. And that the efficiency and accuracy of the patent office will greatly accelerate to everybody’s benefit. I can’t think of anybody better qualified by experience. He was an extraordinarily effective, skillful patent litigator for 20 years. And now he’s been in industry for almost as long. And he has extensive scientific training. He has proven management skills in a huge organization. J&J isn’t just a pharmaceutical company, it’s dozens of companies in many different industries. Highly diversified. He’s an ideal choice by experience, by intellect, by temperament. And he’s a safe choice because everybody knows exactly what he thinks and believes in. He’s testified six times in front of the Congress on these patent reform bills. He’s widely acknowledged as a consensus leader, that’s why he gets selected to be the president of the Intellectual Property Owners. That’s why he was on the executive committee there and in the AIPLA as well. So he’s a great choice, he’s a safe choice, he’s a known choice. And now in terms of the detractors, I think from what I’ve seen so far the attacks depend on extreme distortions of the truth. So I hope and assume they won’t have much impact. I think a lot of the attacks are part of a broader war on patents by a very small number of very big, very rich companies. Who are so focused on the impact of the status quo on their bottom line that they seem to be completely heedless of the effects on the other 99% of companies in the country. And on the future. So it’s a very narrow focus, a rather selfish focus. But it is very relentless, there are by my count fewer than a dozen companies that are really on the warpath against the patent system. But I’m sure they won’t give up. And I think the attacks on Phil Johnson through some of the allies of this group of companies, some of the spokespersons for this group of companies are part of this larger war that is going on in Congress, in the Supreme Court, in the nominations process in the federal circuit and now in the nominations process with regard to the director of PTO. The PTO needs strong leadership. It’s in the capable hands right now of Michelle Lee who has a very strong background and is very smart but she’s not confirmed. She doesn’t have the influence with the Congress or the White House or the media that a confirmed director would have. Phil Johnson has enormous stature and credibility and a very strong personality. In fact, what the patent office needs now is somebody very strong and he is very strong.
QUINN: Right. I was wondering who’s going to get nominated as we all were. Will anybody get nominated was the question for a while. And you think well who could it be that everybody would be behind, and I thought that person really doesn’t exist because, well, one, I wasn’t really sure that that person existed. Who would want to come after David Kappos? Those are big shoes to fill. And, two, if you were that person why would you want to take this job? And then when you hear the name Phil Johnson and it’s like, oh my goodness. Johnson has just enormous potential to be just as good as David Kappos because of his experience. Because of his respect within the industry there will be no serious person in the industry that will question any of his motives. I mean, sure, we disagree with him from time-to-time on policy positions as we disagree amongst ourselves all the time. We’re a passionate group of folks. But few people are going to get it like he gets it. And few people are as known on Capitol Hill as he’s known. It seems like this would be an extraordinary presidential appointment. And I usually don’t think very highly of most presidential appointments, but this one will be outstanding.
MICHEL: This is a sensationally brilliant choice. And if nominated and confirmed Phil Johnson will I predict be the strongest, most effective leader of the patent office in our lifetime, maybe ever. And that in no way diminishes the tremendous job done by David Kappos, and it will build on the achievements of the Kappos era. But Phil Johnson is the consensus candidate a perfectly credentialed and prepared candidate. And the fact that he’s willing to do it I think is a great credit to him. To me this is real patriotism. When somebody who could stay in industry and make no doubt a vast sums is willing to give that up and work 18 hours a day for the good of the company we ought to all be really very, very grateful that that kind of motivation and selflessness is still available in the patent leadership community.
QUINN: I agree. Because everybody that thinks about it seriously will know he will have to take a substantial pay cut. He’s going to have to do an awful lot with his own investment and retirement portfolio just so that everything is completely clean.
MICHEL: I don’t know any details about his personal finances. But even without knowing the details it’s obvious that he’s making a huge financial sacrifice. Not only in pay but also in investments. And I think it’s just a great credit to him and to others like him that he’s willing to do that and the country should welcome that with open arms.
QUINN: Since it’s of come up, could you give us an idea of what kind of personal sacrifice he will be making in terms of investments and pay?
MICHEL: I really don’t know what the Administration demands. I understand that there is an extraordinarily careful vetting of potential nominees with regard to investments and conflicts of interest, and ethical track record, and many, many, many other details. Even more so than any prior administration from what I hear and understand. And I’m sure that Phil Johnson is undergoing that process now. And it’s clear to me that whatever the requirements are he will meet them. And if that means he takes a huge hit in various different ways financially he’s already made up his mind to accept that. Which I just think is tremendous. So to me it’s one more reason why he ought to be nominated and confirmed. This is like George Washington willing to serve the country essentially without pay and with not even all of his expenses covered out of devotion to the future of the country. That’s the kind of thing that you’re seeing again with Phil Johnson.
NOTE: The full interview with Judge Michel will be published in the coming week.