I’m in New York City today at PLI headquarters on Seventh Avenue for the USPTO Post-Grant Patent Trials 2013 program. I will moderate a panel this afternoon, but as the day starts the first speaker is David Kappos, former Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. Since leaving the USPTO at the end of January 2013, Kappos has landed at the New York offices of Cravath, Swaine & Moore, an extremely well regarded Am Law 100 firm and great place to land. It was good to see him, he says he is doing well, and he seems to have as much energy and enthusiasm as ever.
Kappos started by explaining that this is his first public speaking engagement since leaving the USPTO. From the outset he also explained that the slides he would be using for the presentation were prepared by the USPTO. This presentation was originally scheduled to be given by James Smith, Chief Judge of the PTAB, who had to beg off as the result of sequestration cuts.
This article is by no means a substitute for the presentation by Kappos. In 60 minutes he managed to bring everyone up to date on what is going on at the USPTO relative to Appeals and other post patent proceedings. Of course, there were a handful of things that particularly caught my attention, which are mentioned below, along with “my two cents.” To distinguish the Kappos presentation from my own thoughts I have put my own thoughts in italics.
David Kappos will speak about Post-Grant Trials at PLI in NY on March 27, 2013.
Next week on Wednesday, March 27, 2013, I will be once again in New York City at Practising Law Institute headquarters on Seventh Avenue, roughly between Central Park and Times Square. The program for the day is titled USPTO Post-Grant Patent Trials 2013, which will provide 6 CLE credits for attendees.
I am a moderator for the segment titled Practice Before the PTAB Roundtable, which will discuss the first trial petitions filed, motions practice, scheduling, the possible need for rule refinements and practice tips for practitioners. Robert Sterne of Sterne Kessler and Professor Lisa Dolak of Syracuse University College of Law will be the panelists.
A new addition to the program just announced today is David Kappos, who is the immediate former Director of the United States Patent and Trademark Office. Kappos, a life-long employee of IBM prior to taking charge of the USPTO, is now with Cravath, Swaine & Moore LLP in New York City. Kappos will discuss the Patent Trial and Appeal Board, specifically discussing ex parte reexamination, the remaining legacy inter partes reexamination cases, inter partes review and the transitional program relating to covered business method patents. His segment will run from 9:15 am to 10:15 am. In addition to being presented live in New York City the program will also be webcast.
Earlier today Cravath, Swaine & Moore LLP announced that David J. Kappos, former Under Secretary of Commerce and Director of the United States Patent and Trademark Office (USPTO), joined the Firm as a partner. The Wall Street Journal Law Blog points out that this is only the fourth lateral hire by Cravath in the last 50 years. Indeed, Cravath is not a firm know to play the revolving door lateral hiring game, but obviously couldn’t pass up the opportunity to add a talent of the likes of David Kappos. He is listed on the Cravath website as being a member of Cravath’s corporate law group.
“I am simply thrilled to be joining Cravath,” Kappos said. “I was fortunate to work closely with Cravath on many intellectual property matters over the years as a client at IBM, and I developed an extremely high regard for the Firm’s unique ability to achieve the best possible results handling the most complex and important corporate and contested IP issues. Of critical importance to me, Cravath handles intellectual property in the context of the client’s business objectives, with absolutely first-in-class legal expertise, both in the corporate and litigation arenas.”
Cravath is indeed a very decorated law firm with a long and celebrated history. In recent years the firm continues to be in the first tier for M&A, securities, commercial banking and litigation according to both Chambers USA and Legal 500. In 2012, U.S. News and World Report named Cravath “Law Firm of the Year” for intellectual property litigation.
USPTO Senior Leadership. From left to right: Acting Director Teresa Rea, Trademarks Commissioner Deborah Cohn, and Patent Commissioner Peggy Focarino. Taken by Renee Quinn at the Women’s Symposium at the USPTO.
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.
Kappos at the USPTO hosting a public meeting on Patents End2End (12/14/2012).
On January 15, 2013, I had the privilege to interview David Kappos one last time in his role as Under Secretary of Commerce for Intellectual Property and the Director of the United States Patent and Trademark Office. What follows is my exit interview with Director Kappos, where we reflect on his time at the USPTO, all that he has accomplished and the legacy that he will leave behind.
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.
UPDATED: Jan. 22, 2013 at 11:43am (see comment #2)
USPTO Director David Kappos speaking a White House event on April 11, 2012.
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.
It is that time of the year when reflections are made on the year that is about to pass, wishes are made for the new year, and a prediction or two start to pop from both amateur and professional prognosticators alike. In years past we have done a Patent Wishes article, which is currently in the works. This year I thought I would add an article that gave some industry insiders an opportunity to reflect upon the biggest moments in intellectual property for 2012.
Whenever I do something like this I keep my fingers crossed. The biggest moments in IP seem rather obvious to me, so will they to others? Will I wind up printing the same thing 5 or 6 times? The answer: Absolutely not! We had a very busy year, from Supreme Court decisions to failed legislation to fight piracy on the Internet, to important Federal Circuit cases and implementation of the America Invents Act.
Indeed, for this inaugural edition of Biggest Moments in IP we have a variety of reflections on a wide array of IP issues. Former Commissioner for Patents Bob Stoll walked through some of the biggest items on the patent docket for the year. Stephen Kunin of Oblon Spivak gives us his Top 10 list in David Letterman style. Former staffer to Senator Leahy (D-VT) and current lobbyist Marla Grossman reflects on Senator Leahy’s decision to refuse the Chairmanship of the Senate Appropriations Committee to stay on as Chair of the Judiciary Committee. IP attorney and frequent feature contributor to IPWatchdog.com Beth Hutchens focuses on several copyright and first amendment issues, and reminds us of the battle that ensued to defeat SOPA.
On Monday the Intellectual Property Owners Education Foundation held its popular annual event simply titled PTO Day, which started early in the morning and ran throughout the day. PTO Day is, however, not the only event on the IPO calendar for December. After the close of the conference proceedings and as afternoon turns to evening a who’s who of the patent and innovation communities don black-ties (for the men) and elegant gowns (for the ladies).
One of the highlights of the year in such circles is the awarding of the National Inventor of the Year Award at a dinner ceremony in Washington, DC. This year the Awards Ceremony was hosted at the old Patent Office building, which today houses the Smithsonian American Art Museum and the National Portrait Gallery. If you have never been to this venue it is, in my opinion, one of the finest venues in all of Washington, DC for such an event. Of course, the fact that it was a first class, extraordinarily well done event only added to the evening. The meal was a fabulous shrimp appetizer, followed by filet mignon and an incredibly rich chocolate cake and ice cream for desert. The wine flowed throughout the evening, and everyone had a great time.
Pulling the plug and letting out the baby with the bath water is ridiculous, on that everyone can agree. What people can’t agree on, surprisingly, is selecting a path for the future from the playbook of winning plays. Time and time again any more “do-gooders” seem to want to call plays from the playbook of plays that have never succeeded. In what universe does that make any sense whatsoever? When will they realize that plays that have not worked have failed for a reason? Success is not overdue. Get a grip!
With a firm grasp of some alternate reality, critics of the patent system, and specifically the critics of software patents, would have the United States forfeit the future in favor of something that has never worked. Curtailing patent rights has never worked to produce more innovation anywhere it has been tried. The inconvenient truth is that there is no evidence that a weaker patent system fosters innovation, but there is overwhelming evidence that a strong patent system does foster innovation, leads to growth, investment from abroad and a growing more prosperous economy. Indeed, weak patent rights virtually guarantee innovation simply won’t happen.
So what is fueling the anti-software patent hatred and ridiculous claims that software patents are somehow evil? It is a particular world-view or ideology that approaches religious zealotry. It certainly isn’t anything that resembles factual truth or reality.
EDITORIAL NOTE: What follows are the prepared remarks of David Kappos, Under Secretary of of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, delivered at the Center for American Progress in Washington, DC, on November 20, 2012. This is reprinted here with permission.
Thank you, Winnie, for that kind introduction. Good morning, everyone. It’s great to be here at the Center for American Progress. I’m pleased to be able to talk about intellectual property and the role that intellectual property rights play in enabling innovative goods and services to come to market. And specifically, I’m going to focus my remarks on software patents and the so-called smartphone “patent wars,” which have become front page news in the last year or so.
It is increasingly clear that intellectual property, or IP, is a key driver of economic growth, exports, and job creation. IP rights are the global currency for creating value for products and services, for all innovators, in all markets. And the protection provided by patents is critical to the innovation ecosystem. In fact, last spring, the U.S. Commerce Department released a report that found IP-intensive industries support at least 40 million jobs and contributes more than $5 trillion to our economy, accounting for 35 percent of America’s gross domestic product. So it is in this context that we are seeing multi-billion dollar acquisitions of patent portfolios and a number of high profile patent lawsuits, involving some of the most innovative companies on the planet, who are producing some of the most popular technologies ever created.
David Kappos, Director of the USPTO for a little while longer.
UPDATE #4: 4:19pm ET on Nov. 26, 2012
David Kappos, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, will be stepping down and leaving the agency effective the end of January 2013. This news originally came to me from a high-ranking, well placed source within the USPTO who spoke on the condition of anonymity, and has subsequently been confirmed by the USPTO.
“I am honored to have served this administration by leading the USPTO,” said Kappos. “I believe we have made great progress in reducing the patent backlog, increasing operational efficiency, and exerting leadership in IP policy domestically and internationally. Thanks to the entire USPTO staff for their dedication and hard work. I wish them the very best as they continue their efforts to support the U.S. economy by promoting and protecting innovation.”
Indeed, Director Kappos has 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 has 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 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.
President Obama delivering State of the Union Address, January 2012.
You would have to be living under a rock not to know that President Barack Obama was reelected last night in what really can only be characterized as a resounding victory. While I went on the record endorsing Governor Mitt Romney, rather than feeling too bad, I at least have the reassurance that the U.S. patent system will remain in capable hands for the foreseeable future.
Even in my endorsement of Governor Romney I discussed that it is undeniable that the USPTO is run better now than at any time during the Bush Administration. So while the Republicans in the patent community are no doubt disappointed about the results of the election last night, the consolation prize is that the federal agency that handles matters in our little niche will be competently run moving forward. So there is a silver lining.
Of course, there have been rumors flying around that David Kappos will not remain at the USPTO for long even if President Obama did win reelection. No one knows for sure what will happen, and frankly who could blame Kappos if he decided that 4 years was enough and he wants to return to the private sector. Still, if and when Kappos would make a decision to return to the private sector I would be surprised. As far as I can see he remains the highly energetic, extremely motivated, dedicated servant of the patent system that he was when he first assumed the mantle of Director in August 2009.
Todd Dickinson, AIPLA Executive Director, October 26, 2012, starts the panel discussion.
The annual meeting of the American Intellectual Property Law Association (AIPLA) was held last week in Washington, DC at the Marriott Wardman Park Hotel. The event was attended by well in excess of 2,000 attorneys predominantly from the United States, but with a strong contingency of attorneys from foreign firms. I personally had the opportunity to meet with attorneys from Canada, Japan, Korea and the United Kingdom.
One of the presentations I attended was the panel moderated by Todd Dickinson, who is the current Executive Director of the AIPLA and a former Director of the United States Patent and Trademark Office. Also on this panel were Judge Sharon Prost of the United States Court of Appeals for the Federal Circuit, USPTO Director David Kappos, Eli Lilly General Counsel Bob Armitage, Senior Counsel to the Senate Judiciary Committee Aaron Cooper and Oblon Spivak attorney W. Todd Baker.
Dickinson led an informative question and answer session centering on the expectations and early results from the various changes to the patent system implemented by the America Invents Act. The title of the panel discussion was simply – AIA – Will the New System Work? Not surprisingly, everyone was in agreement that the system will work, even if only because it has to work since now it is the law.
Imagine a world in which the most innovative technologies spur economic growth and create jobs while also helping the world’s poorest populations. Mobile phone apps built for social networking would provide critical infrastructure to connect isolated markets. Advances in material sciences would be retooled to provide cost effective energy solutions for Americans struggling to pay their utility bills. Medical technologies would be adapted to meet the needs of people in developing countries.
To help make this dream a reality, the USPTO several months ago launched a prize competition — Patents for Humanity — to recognize individuals, universities and companies that have used their patented technologies for humanitarian purposes anywhere in the world. We will be taking submissions for our prize competition through the end of August.
Acting U.S. Commerce Secretary Rebecca Blank and Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office (USPTO) David Kappos today announced plans to open regional USPTO offices in or around Dallas, Texas, Denver, Colorado, and Silicon Valley, California. These offices are in addition to the already-announced first USPTO satellite office to open on July 13 in Detroit, Michigan. The four offices will function as hubs of innovation and creativity, helping protect and foster American innovation in the global marketplace, helping businesses cut through red tape, and creating new economic opportunities in each of the local communities. Next week, Acting Secretary Blank and Under Secretary Kappos will travel to each of the newly selected cities to meet with local businesses, entrepreneurs and public officials to discuss the new office openings.
“Intellectual property protection and innovation are engines of economic growth and the bedrock of America’s private sector,” said Acting U.S. Commerce Secretary Rebecca Blank. “The Obama administration is committed to making certain our businesses and entrepreneurs have the resources they need to grow, create jobs and compete globally. These new offices are an historic step toward further advancing our world’s best IP system, and reinforcing the United States as the number one destination for innovation capital, and research and development around the world.”
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