On Tuesday, June 29, 2010, I had the opportunity to sit down on the record with Nick Godici, the former Acting Director of the United States Patent and Trademark Office and Former Acting Undersecretary of Commerce for Intellectual Property. Godici is one of only a small handful of individuals to have seen the Patent Office on every level, from newest patent examiner to SPE to Group Director, Commissioner for Patents and ultimately to Director of the USPTO. I have wanted to sit down with him for some time now, and some mutual friends of ours, who are mentioned in the interview in passing, made introductions. I was put in touch with Godici and now the rest is history, as they say.
I thoroughly enjoyed my time with Godici, and we managed to get into a wide variety of issues that ranged from his early days as a patent examiner, his patent examination philosophy and approach, the role of the USPTO, the Patent Granting Authority versus the Patent Denial Authority, examiner training, building relationships between patent examiners and the patent bar, the PTO work from home initiative, inequitable conduct, the Bilski decision and what the USPTO is now likely doing to address that, the parallels between the Reagan Administration and the Obama Administration in terms of patent and innovation policy and exactly what it is like to be the Commissioner of Patents and the Director of the Patent Office, and much more. Oh yes, we also talked about his getting a call from Secretary of Commerce Gary Locke last summer and returning to the Patent Office for a few months as a special adviser at the request of the Obama Administration.
John White answers a student question in NYC at PLI Headquarters.
I am writing from New York City today. I am here for the PLI Patent Bar Review Course, which kicks off our summer run of courses. Over the next couple months John White and I will crisscross the country from New York, Houston, Boston, Los Angeles, Chicago and Atlanta, spreading patent teachings to aspiring patent attorneys and patent agents. Right now I am sitting in the back of the room at PLI Headquarters in New York City listening to John White talking, waiting for him to discuss interviews with an examiner. At some point John will talk about how you simply cannot show up at an interview and ask the examiner “so do you see anything patentable here?” He will then go on to say that you need to come to the interview with proposals and suggestions in an attempt to provide something to the examiner that is patentable. I have always wondered why that is the case. Why can’t you just go to an interview and ask the examiner whether they see anything patentable? After all, the examiner is going to be the decision-maker. I have never seen the wisdom behind a policy that prevents the examiner and attorney from having a meaningful dialogue to ascertain whether patentable matter exists and what can be done to allow a patent. My thought for the Patent Office is that it be a Patent Granting Authority, and as I have written over many months, a meaningful and early interview that identifies patentable material can and should lead to the issuance of at least one patent quickly, which would be good for the applicant, lead to venture funding and consequently be good for the economy.
Sometimes I wonder if I am dreaming. Virtually all of us have been affected by the economic crisis that has gripped the world, so no one can really claim to be uniquely impacted above and beyond others, although to each their own circumstance no doubt feels unique. There are tried and true solutions that historically have lead to economic growth and prosperity, so the fact that our leaders seem more interested in pursuing strategies that would be first time successes even if they do work, because there is no historical evidence to suggest that spending more, printing money and increasing the size of government will do anything other than make things worse. You cannot borrow and spend your way out of debt. It was Daniel Hannan, a previously unknown member of the European Union Parliament, who best summed this up in a YouTube clip that has been viewed more than 2.2 million times. Yet we continue to borrow and spend, and now U.S. taxpayers are being asked to give away $448 million to other countries to help citizens of those countries hit by the economic downturn, including $100 million for small business and entrepreneurs in Latin America, according to Bloomberg.com. Mr. Obama, if you want to assist small business and entrepreneurs there are plenty here in the United States that could use a helping hand. And, by the way, the best thing you could do would be to come up with a national technology policy to foster innovation and entrepreneurship in the U.S., and you can start with fixing the United States Patent and Trademark Office!
Many readers will recall that on March 16, 2009, I posted an article titled Perspective of an Anonymous Patent Examiner. That post was and has been one of the most popular posts ever on the IPWatchdog.com Blog. Therefore, I was quite pleased to receive another e-mail from the same anonymous patent examiner over the weekend. Not only is this type of exchange good for readership, but it is refreshing to hear that there is at least one patent examiner who is concerned about where the Patent Office is heading and is interested in trying to fashion solutions. In reality, there are probably many patent examiners who are concerned about the current state of affairs at the US Patent Office. I know retired patent examiners and officials who have left the Patent Office share this concern as well. It is easy to lose sight of the fact that there are people within the Patent Office who do still care when the allowance rate is so low, application pendency is on the rise and there are reports that due to sham quality control some examiners have flat out stopped issuing patents altogether. In any event, what the anonymous patent examiner had to say this time will shock you no doubt. It seems that the budget crisis is so bad at the USPTO that the HVAC system will not be operating on Sundays any more. Unbelievable!
According to Reuters, Senator Orrin Hatch (R-UT) says that the House and Senate are close to agreeing on language for a patent reform bill that would virtually ensure its passage. According to Hatch, patent reform will happen this year, saying that he would be shocked if patent reform was not enacted in 2009. Hatch says “[th]is is the closest we’ve come to really doing this job.” So what is the good news? Hatch also says that the Senate is going to agree to language that would make it much more difficult for courts to find inequitable conduct. According to Reuters, the language would mean that inequitable conduct could be found only if there were real fraud during the patent acquisition process, rather than allowing a defendant to point to an error made in a “complicated process.” What this actually means time will only tell, but if this means that patent reform would adopt the Patent Office view of inequitable conduct and enact Rule 56 that would be an enormous step in the right direction. This is what I have been suggesting for months, it would force certain Federal Circuit judges to abandon their myopic view of inequitable conduct and it would open the door to make Patent Office reform possible. By limiting inequitable conduct to real fraud it would be possible for patent attorneys and agents to have real conversations with patent examiners and lead to a more open and less adversarial process, perhaps even allowing for the cooperative approach to patent examination I recently discussed when I suggested a change in Patent Office philosophy.
One week ago today I posted an article titled Change in Patent Office Philosophy Can Lead Recovery. In the little more than a full week that this article has been available it has been viewed 640 times, which makes it popular for a patent article but nothing nearly as popular as, for example, Obama Wants Open Source IT Solutions for US, which has been viewed 5,910 times during the same span. Notwithstanding, I have received more private feedback from current and former patent examiners regarding my urging for a change in philosophy than for any other article I have written. It seems that there are many intimately familiar with the US patent system that feel a change is necessary, and it is time that examiners work for the Patent Granting Authority rather than the Patent Denial Authority.
The United States Patent & Trademark Office has just released the 2008 Performance and Accountability Report, which is the annual report explaining the activities of the Office during fiscal year 2008. While so much of the report is a self congratulating look back at what the Dudas Administration believes it effectively achieved over the past year, the report should be anything but self congratulating given the dire situation that the US Patent System faces moving forward. As of the end of Fiscal Year 2008 there are 1,208,076 patent applications still pending at the Patent Office. At the end of Fiscal Year 1997 the number of pending applications left over was only 275,295, so over the last 11 years there has been a 439% increase in the number of pending applications left over that could not be resolved. That is alarming. Each year since 1997 this number has gone up, first going over the 1 million mark in 2006. As patent applications continue to pile up the US patent system is plunging further and further into irrelevance, and that is not a good thing for our economy or for the future of innovation. Something needs to be done immediately to reverse this trend.