What is the fate of the PTO in light of the forthcoming regime change? In this regard, not much has been said or written that has had any direct factual basis with respect to USPTO direction under a Trump administration. Yes, there has been some informed speculation in view of those the transition team has called or likely taken advice from, but so far not too much to go by. So, allow me to step into the fray and tell you what the USPTO needs to do to make America great again!
First, let’s review what recent past administrations did and why. The Reagan administration, the first of my own personal patent era, and in which I worked at the PTO as an examiner and a (very) junior speech writer for then Commissioner Quigg, was typical. A Commissioner (now Director) was selected from those at or near the ends of their respective careers, sort of as a capstone. The selection(s) came from industrial stalwarts (Phillips Petroleum – (Commissioner Quigg), Monsanto – (Deputy Peterson). They were succeeded by Harry F. Manbeck (GE). The big work of that era was reducing application pendency. An examiner hiring binge was coupled with the slogan 18 by ’85, which became 18 by ’87, and was eventually achieved as 18 by ’89! The 18 referring to average application pendency in months. The PTO was well run by careerists (like Rene Tegmeyer et seq.) and, more-or-less, not interfered with by the political appointees. The political appointees did what they do best, they were the face of the Office, they obtained the resources necessary to deliver on the political promises and the careerists ran the day-to-day operations.
That changed with the Clinton era when Bruce Lehman was appointed. He was not in a career capstone phase, but was younger (more ambitious/energetic perhaps) and sourced not from industry, but from Capitol Hill. He was also determined to change the PTO from what it was; a staid backwater of engineers, to a more representative and progressive government agency. This was all very new fangled for the PTO, and in some ways it struggled, but in other ways it succeeded. Lehman was succeeded by Q. Todd Dickinson. An able successor who also ushered in the American Inventors Protection Act (AIPA) that began the “published application”, the “Director” era, and many, many rule adjustments. The overarching issue thru the Clinton era was keeping the money from fees charged to users. The PTO was, it seemed, always short of funds, and Congress was always keeping more than they promised of the fees generated. The PTO was raided to fund other government programs and the apolitical Office started to succumb to the whims of Washington.
The next Director, James E. Rogan (former Congressman), was another Capitol Hill sourced appointee. Politically savvy perhaps, but not necessarily steeped in the USPTO or its particular (unique) issues. He was succeeded by Jon Dudas (his Deputy) who was, in turn, succeeded (briefly) by a USPTO careerist, John Doll, during the switch from Bush to Obama. During this time frame from 2000-2008, for at least the early years of the Bush admin, the PTO had solid careerist support (Nick Godici et seq), but that eventually unraveled towards the end of the administration (by then Dudas was Director, and John Doll was Commissioner) to where the PTO was successfully sued in the Eastern District of Virginia to stop the ill considered “continuations rule package”. To say this lawsuit was unprecedented is a huge understatement. In addition, the PTO tried several “quality” initiatives that succeeded in both driving up pendency and driving down the rate of the allowance to historic lows (37% or so). In short, the PTO was in a bit of a mess by the end of the Bush years.
But, help was on the way (insert sound of the Calvary bugle here) in the form of David Kappos (IBM). In the first years of the Obama administration, he brought both energy and imagination to the job of Director. He really leaned on the careerists (Bob Stoll et seq) to deliver, and they did. The PTO was more-or-less transformed into a responsive customer centered government agency, that was also a good place to work. A tremendous effort within the PTO was also put forward to create the rules backing for the AIA. A huge job that cannot be overstated. He was succeeded, briefly, by Terry Rea (Acting) and then by no one, for the longest time, until Michelle Lee took the helm after a long and uncertain battle of succession. Names for new Directors were put forward, and just as quickly quashed by various factions. Director Lee was the last person standing.
The PTO then drifted towards being a very user unfriendly operation that has become a center of suspicion and cynicism. I do not think Director Lee necessarily played a direct role in this, i.e., guided this trajectory with policy objectives, but rather was present when it occurred. I do think, however, that politics and branding may have played a role. Kappos had been perceived as too “pro patent”; after all, he hailed from the PTO’s largest customer, IBM. Then Lee became the “anti-patent antidote”; hailing from a patent system foe, Google.
In my judgment, the circumstance of this drift is the eventual full impact of the AIA post grant procedures playing out thru the PTAB. The PTAB righteous invalidation crusade has ridden the coattails of the Supreme Court introducing a great deal of uncertainty into 35 USC 101. The present suspicion and cynicism has to do with the PTO seemingly duping applicants out of their money for filing and maintenance fees then, just when the patent might be worth something, invalidating the same patent at the behest of a higher paying industry group thru a post grant procedure. Faith and trust in the patent system, and the PTO role in it, is truly at a low ebb. The political aspect is, from all appearances, justified or not, that the Tech lobby (ie, Google, Cisco, et al) has spent millions ginning up the troll threat to where the PTAB believed that, in order to justify itself, invalidation was job one. Capitol Hill (follow the money) has obligingly played along. And, again, it didn’t help perceptions that Michelle Lee hailed from Google, pre her tenure at the USPTO.
Why the history lesson – so we can learn from it! If we are not students of history, we are doomed to repeat it. My advice is to revert to the Kappos ethos of a user friendly and responsive set of careerists, with the political operators standing to one side, and to legislate (if necessary) a Reissue Off-ramp for patents caught up in PTAB proceedings. If the PTAB will not indulge amendments, and they likely won’t inasmuch as they are not “examiners”, then let the patent owner solve the issue another way, i.e., through reissue. I would also remake the PTAB to include far more careerist examiners. Clearly the PTAB composition, at the moment, seems to have too much of a political brief of “fixing” a problem related to “bad” patents. The CAFC is barely beginning the process to reign them in. This mechanism of one fee to obtain a patent and a higher one to get rid of it, from the same government entity, is a recipe for cynicism.
Faith needs to be restored in the patent system; across the board. It is our best mechanism to foster a bright future based on innovation driven economic growth. We, as a society, need to incentivize the best and brightest to come forward with ideas, attract investment by virtue of solid protection, and let the job generating fruit be harvested. The current tech industry tendency toward trade secrets helps no one. It is uncertain, undisclosed, and murky (at best). Bring the ideas out of the shadows and let’s build a future. A well run, credible, PTO is a critical cog in this system and my hope is the Trump administration is getting this same advice. The USPTO matters, it should not be overlooked!