Will Obama Ever Select a PTO Director?

Admittedly, the selection of an Undersecretary of Commerce for Intellectual Property, a post that also carries the title of Director of the United States Patent and Trademark Office, is not as important in the greater scheme of things as many of the other posts President Obama has had to fill.  Having said that, given the unique and real challenges facing the U.S. patent system, it would be nice to eventually have a leader in place.  While those within the Patent Office are starting initiatives that will likely help in the long run, the major issues facing the USPTO are not likely to be resolved until there is new leadership.  My hope is that a new leader will be able to explain to Congress that more funding is needed, and maybe even explain that patent reform should take actually attempt to help the patent system, and the Patent Office in particular.  But with the announcement of Supreme Court nominee Sonia Sotomayor, does anyone think it is realistic to anticipate a nominee for PTO Director to happen before Sotomayor’s confirmation hearings?  Add to this the fact that North Korea announced that the Korean War is back on, Vice President Cheney and President Obama are jousting over how to handle terrorists, no one wanting Gitmo prisoners in the U.S., Cap and Trade working its way through Congress and Iran perpetually wanting to erase Israel from the map.  With all these issues occupying the President and Congress is there any real expectation that a PTO Director will be named anytime soon?

What has been developing at the Patent Office seems promising, so perhaps the need for an announcement of a PTO Director is not as great as might have been otherwise originally believed by myself and others.  The Acting Patent Commissioner says efforts are being made to damp down the number of applications receiving “second pair of eyes” reviews, and examiners are being encouraged to conduct interviews with representatives and applicants earlier in the process, and later in the process.  These later interviews should significantly impact the number of continuations and RCEs (requests for continued examination) that are filed, which should in turn have at least a modest impact on the number of new applications and lead to higher allowance rates.  It should also alleviate the growing need to appeal because of a feeling that all options have been exhausted, and lost.  Of course, time will tell, but shortly after Commissioner Focarino spoke with me I heard from within the Patent Office that examiners have already started to be encouraged to find allowable matter and work with applicants and representatives in a more cooperative and collaborative way, by rejecting where appropriate and offering suggestions and alternatives that would be patentable is presented by the applicant.

Time will tell what will actually happen, but seeing any reason to be optimistic is good news, particularly given it is all but certain that with a growing concern over what many allege were racist and sexist remarks by Judge Sotomayor, I cannot imagine any nominations making their way through the Senate until she, or anyone who follows her should her nomination tank, is confirmed.  I would prefer to not get engaged in a political debate here in any great detail, that is of course why I also periodically write for Blatantly True.  Having sait that, I think everyone from both sides of the aisle and from all political persuasions can agree that the growing political debate around Sotomayor and Iran, Israel, Korea, Guantanamo Bay, terrorism, taxes, spending and health care all make it likely that any real time, meaningful thought or consideration will trickle its way down to the United States Patent and Trademark Office, or patent reform for that matter.  Never mind that the engine that could grow our economy desparately needs assistance, reconstitution and greater funding, Washington, D.C. has world and economic crisises to deal with, as well as the many decisions that necessarily do along with running two-thirds of American auto companies, and most of the banking and financial industries, to preoccupy itself with.

There I go again, and after I promised not to make this political.  Maybe I am constitutionally incapable of not diving into politics, or maybe I am suffering from attention deficit disorder and simply cannot stay on point, I’ll let you make that call and/or insert your own joke here.  But while you are poking fun at me and saying “here he goes again” allow me to point out that there are so many enormous and consequential decisions on the plate of our leaders in D.C. that we in the patent and innovation community are going to get left holding the bag on leadership and reform, yet again!

That probably didn’t come out exactly like I intended, but hopefully you get the point.  I am encouraged by what I see happening from career employees within the USPTO, even if many are still not convinced John Doll is the right man for the job.  Things are moving in a positive direction and for that I am thankful.  Nevertheless, it would be wonderful if President Obama could take some time out of naming yet another Czar, for yet another function, creating yet another post that reports only to him and cannot be held to account by Congress.  This is, of course, only unless and until he decides to name a Patent Czar, and appoints someone up to the task.  Czars who are only held to account to President Obama seem to thwart our system of governance, rules and laws, but the patent system and Patent Office may just need a benevolent Patent Czar who doesn’t have to answer to Congress.  After all, who among us really thinks Congress understands patents anyway?  Perhaps with the exception of Senator Kyl, Congressman Issa and a few others, patents might as well be hocus pocus mumbo jumbo.

To come back to the main point of this article, Judge Sotomayor seems like she will be our next Supreme Court Justice, whether we like it or not.  I think it is wonderful that she has a great personal story, the type of “only in America” story that is the reason our country is so great.  I don’t know enough about her competence to offer an opinion, but what I do know is that she could be incredibly liberal and it wouldn’t change anything on the Supreme Court.   She is replacing Justice Souter, who was a reliable liberal vote for many years now, and with Sotomayor decisions of social importance and consequence will still be 5 to 4 in favor of conservatives.  In fact, it is extremely likely that during this term Obama will not nominate anyone who will change that dynamic.  That being the case, lets move on and take this issue off the table so we can focus on the other dozen or so major issues, and perhaps even eventually get to the point were there is a PTO Director designate.