Christmas is coming early for inventors, innovative companies, patent attorneys and anyone in the technology/innovation industry that relies upon patent protection. Faced with a growing backlog and long patent pendency periods in a difficult fiscal environment, the United States Patent and Trademark Office (USPTO) is reaching out to former patent examiners, inviting them to return to the agency. According to David Kappos, the Director of the USPTO and Undersecretary of Commerce for Intellectual Property: “Because of their prior experience, returning examiners will need little training and will be able to hit the ground running. These examiners can have an immediate impact on the patent examination backlog and reducing the backlog is our top priority.” In the past I have written over and over again that the USPTO should bring back former patent examiners, precisely for the reasons stated by Kappos (e.g., 5th paragraph and 5th paragraph). I am not about to claim that the USPTO listened to me, but whether they listened to me or came up with this idea on their own it is something I have thought made a lot of sense for a long time. So, not surprisingly, I think this is a wonderful idea!
This is straight from the “you have to be kidding me” file, and for more reasons than immediately are apparent simply by looking at the invention. This invention is a doll urn, which allows for the storing of a human’s or a pet’s ashes. The invention comprises a doll body, a doll head, a doll top, and a voice recorder for recording or playing a message. Disposed in the doll head is an internal compartment, wherein a secure container for holding the ashes may be inserted into the internal compartment via an aperture on the doll head. The doll top comprises a stopper for fitting into the aperture so as to prevent ashes from spilling out of the internal compartment. In one particular version the name of the deceased is imprinted on one foot and the birth date and date of death are imprinted on the other foot (see Figure 6). As strange as this invention seems, the truly sad aspect is that it was granted in just over 10 months! So while some inventors must wait many years (i.e., 3, 4, 5, 6 or more years) this particular inventor was able to file and obtain a patent on her invention in about 10 months. While I am happy for this particular inventor, allow me to notice that something is dramatically wrong at the Patent Office if this invention can get treatment so quickly and commercially viable inventions that could form the basis for investment and business growth languish for years.
Mike Drummond, the Editor of Inventors Digest, sat down for an interview with David Kappos a few weeks ago while he was in Alexandria, Virginia, attending the Independent Inventors Conference. As has probably become apparent over the last several months Mike and I have been cooperating on a number of projects, sharing articles and doing some cross promotion. While I am just a patent attorney with an attitude, a particular point of view and one who can type super fast without looking at the keys, Mike is a real journalist. He has done a couple journalistic tours in Iraq and was nominated for the Pulitzer Prize for work he did while writing for the Charlotte Observer. So while I sometimes pretend to interview people, Drummond is the real deal. With a little arm twisting I was able to convince him to give me a sneak peek of his interview with David Kappos, the new Undersecretary of Commerce for Intellectual Property and the Director of the Patent and Trademark Office. What follows are excerpts from Drummond’s exclusive interview with Kappos. You can read the full story in the magazine’s January 2010 issue, which if you are not getting you really should! So subscribe to Inventors Digest today! Oh yes… to keep within the spirit of the obviously unconstitutional FTC endorsement guidelines that went into effect on December 1, 2009, I am endorsing Inventors Digest and suggesting you should subscribe because I think it is an excellent magazine. It also happens to be the only place you can read the full Kappos interview with Mike Drummond. Inventors Digest did not pay me to say that, and those who know me know that no one could pay me enough to say something I don’t believe! So I hope you are happy FTC police, and please don’t come knocking!
David Kappos addresses Inventors Conference 2009 at USPTO
I am just getting back from two days at the United States Patent and Trademark Office, having attended the 14th Annual Inventors Conference. There is much to report, and much to write about, and I will continue to digest, analyze and write about what I saw and my impressions in the days to come. It is, however, undeniable that there is a completely different tone at the Patent Office. Senior level management, from Director David Kappos, Deputy Director Sharon Barner, Patent Commissioner Bob Stoll and Deputy Commissioner Peggy Focarino, mingled with inventors and seemed genuinely happy to discuss issues and appear committed to revitalizing the patent system. There were many, including myself, who wondered what direction the Patent Office would take under new leadership, and while it is early to give a grade, if we are going to be honest and give an interim report card the only fair grade to give at this point is an A. From top to bottom there is an optimism that exudes from everyone I spoke to at the Patent Office. Changes that ordinarily would take months are taking weeks, and the political leadership seems to REALLY understand the importance of innovation. In fact, in video-taped comments played during lunch today Commerce Secretary Gary Locke said that the Obama Administration pledges to provide US inventors the strongest IP protection available anywhere in the world. What more could we realistically ask for at this point?
Last month a two-day international symposium sponsored by WIPO concluded with broad agreement on the need to pool efforts at the international level to address the problem of backlogs in patent applications at patent offices around the world. In 2007, the last year for which complete worldwide statistics are available, unprocessed patent applications around the world reached 4.2 million, and that number continues to grow according to WIPO. The Director General of WIPO, Mr. Francis Gurry, explained at the symposium that the main challenge of the future for patent offices around the world is to promote coordinated international action to enhance efficiency of operations and encourage dissemination of best practices in modernizing the infrastructure, operations and management of the world’s various patent offices. WIPO hinted that work sharing could be enhanced through the Patent Cooperation Treaty (PCT) and Patent Prosecution Highway (PPH) agreements, with new pilot projects to come on line in early 2010. According to Gary Smith, of the PCT Learning Center and a former member of the United Nations diplomatic corps who served as the Director of the Patent Cooperation Treaty at WIPO, “this will be a considerable inducement to those applicants wishing to obtain patent protection in the growing list of countries participating in the PPH.”
Last week David Kappos addressed the IPO annual meeting in Chicago, Illinois. Kappos’ remarks were varied and really set a new tone for the future of the USPTO under his watch. Kappos continued the theme he has already established in differentiating how the USPTO will run under his regime, as compared to how it ran under the previous regime. Specifically, Kappos promises to cut pendency across the board, to develop a count system for patent examiners that does not require an endless stream of RCEs and he wants a patent system that does not favor (or disfavor) any particular technology over others. On the negative side, Kappos was the bearer of bad news with respect to the fiscal crisis facing the Patent Office, and saying that there will be no new hires during 2010 and likely no way to dig into the backlog of pending cases. He also announced his support for patent reform, which will get many shaking in their boots. It is hard to argue with what he says, namely that it has been long enough without any overhaul of the patent system. I think everyone will likely agree with that statement, but the devil will be in the details. In any event, the agenda set out by Kappos is ambitious. Now we have to see where it leads and whether it will result in a truly better patent system.
EDITORIAL NOTE: What follows was submitted by Ron Katznelson as a comment to Why a Global Patent System is a Bad Idea, which took issue with the articulate position of Microsoft’s Deputy General Counsel Horacio Gutierrez that a global patent system is necessary. It is republished here as an article with the permission of Dr. Katznelson.
From US Patent No. 3,016,629
What seems to be ignored by many of the good comments here is Mr. Gutierrez’s reasons for suggesting “harmonization”. After providing an account of the pendency and backlog difficulties that national patent offices face, Mr. Gutierrez jumps to unsupported conclusions. He states: “Global patent harmonization is not just wishful thinking about an ideal patent system. Rather, it is a necessity if national patent authorities are to overcome the substantial difficulties they face.” “A harmonized, global patent system would resolve many of the criticisms leveled at national patent systems over unmanageable backlogs and interminable pendency periods.” Mr. Gutierrez makes the assertions as if his mere proclamation makes it so.
Something came up in the comments to a post earlier today and I want to address it and definitively debunk the rewriting of history that seems to already be started with respect to who is to blame for the problems of the patent system. The question arises with respect to whether the Patent Office has created their own mess by artificially forcing down the number of patents granted because it was believed the allowance rate was too high and fewer patents should be issued. Of course, to the extent that this happened, which we all know it did, this would be malfeasance of the first magnitude. The law says that applicants are entitled to a patent unless the examiner can articulate a justifiable reason for not issuing a patent. For some government official to simply believe the allowance rate is too high and institute means to guarantee it dropped violates not only common sense, not only the spirit of the patent laws and the Constitution itself, but it also runs contrary to the dictates of the relevant statute. As a result, during the first quarter of 2009 the allowance rate sank to 42%, and the Patent Office budget is a mess.
It is no longer news that the United States Patent Office is hopelessly behind, and many inventors and the companies they work for are waiting extraordinary periods of time to even get a patent examiner to pick up their patent applications for a substantive review. This has caused many inventors to indefinitely have their dreams, hopes and aspirations put on hold. Without an issued patent it is impossible for inventors and start-up companies to obtain funding, and when licensing offers are put on the table the terms are so low and the terms so bad that inventors and start-ups simply cannot take the deals. This is not intended to be an indictment of those who offer bad licensing deals. The truth is licensing offers are always inadequately low when a patent has not issued. Everyone knows that the further down the road to obtaining a patent you are the better any licensing deals become, and with a Patent Office that does not issue patents in any technologically relevant time frame inventors, start-ups and small businesses are the victims, and good innovations are not making their way out into the market. That means society is not benefiting from innovations, and these innovations, some of which could result in new industries with new jobs and jump start the economy, remain idle.
To start the confirmation proceedings in the Senate Judiciary Committee, Senator Patrick Leahy (D-VT) introduced David Kappos this morning with a lengthy and impressive recitation of Kappos’ credentials and experience. He started out with IBM as an engineer after graduating with highest honors from the University of California Davis with a degree in electrical and computer engineering, and moved to the legal department upon completion of his Juris Doctor degree, and then ascended through the ranks at IBM to become Vice President and and Assistant General Counsel. Senator Leahy then allowed Kappos to introduce his family members “for the Kappos archives.” After introducing his parents, Kappos then introduced his Aunt and Uncle who had come to the hearings “from their home in Vermont.” This lead to Senator Leahy saying “oh boy, you know how to get at” and then he started laughing, as did the entire gallery. Of course, Leahy is from Vermont, so Kappos was off to a good start immediately in an easy and friendly atmosphere set by Senator Leahy.