Will Obama Ever Select a PTO Director?

By Gene Quinn
May 29, 2009

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.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded IPWatchdog.com in 1999. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 5 Comments comments.

  1. Michael White May 30, 2009 6:28 pm

    In recent history, the appointment of the USPTO director/commissioner has happened six months to a year after the start of a new administration. Consider, for example:

    1. James Rogan – Dec. 1, 2001
    2. Bruce Lehman – Aug. 11, 1993
    3. Gerald Mossinghof – July 8, 1981

    You have to go back to the 1950s or 1960s to find appointments that were made in the first 100 days. I wouldn’t be surprised if it happens in July or August.

  2. Gene Quinn May 30, 2009 7:13 pm

    Michael-

    I have no reason to doubt your facts, but President Obama campaigned in at least some small part on technology, innovation and patent reform. It is really unheard of for patents to be mentioned during a campaign, but he did several times, and had a position statement on his website. We are also facing a record backlog, and it is a functioning patent system and Patent Office that could easily bring us out of recession. With all this I had hoped for more swift action. The longer it goes the more it is apparent that the White House doesn’t understand the magnitude of the harm and how we have historically come out of recessions.

    -Gene

  3. Noise above Law May 30, 2009 10:54 pm

    Gene,

    It was only this past May 6 that you had a post questioning Obama, which I added a little spice too.

    The spice is repeated here for convenience:

    Let me give credit where credit is due, the information comes from the IPO Daily News, specifically the Friday Feature of IP LANGUAGE CURMUDGEON, the curmudgeon can be reached at iplanguagecurmudgeon @ ipo.org . Reproduced in slightly modified simple text below:

    *DID OBAMA SPEECHWRITERS TAKE LINCOLN’S “FUEL OF INTEREST” QUOTE OUT OF CONTEXT? —

    *In a lecture on February 11, 1859, Abraham Lincoln said, “The patent system changed this; secured to the inventor, for a limited time, the exclusive use of his invention; and thereby added the fuel of interest to the fire of genius, in the discovery and production of new and useful things.”

    *On April 27, 2009, in a speech to the National Academy of Sciences, President Barack Obama quoted just certain portions. Obama said, “Lincoln refused to accept that our nation’s sole purpose was merely to survive. He created this academy, founded the land grant colleges, and began the work of the transcontinental railroad, believing that we must add ‘the fuel of interest to the fire of genius, in the discovery . . . of new and useful things.’” (Ellipsis Obama’s.)

    *The Obama text did not recognize that Lincoln’s “fuel of interest” was the patent system and Lincoln said it fueled “production” as well as discovery. Pulling quotes out of context may be acceptable in political speeches, although not in legal documents, which must be precise. In any event, the Curmudgeon is highly annoyed that a U.S. President missed an opportunity to learn from Lincoln: patents fuel discovery and production.

    ***

    I then added “Has the Patent Office lost that much respect that the current President shies away from fully associating with even a past president’s historical quote in rallying the country? As a member of this hallowed profession I feel indignation in this. The shame should be place on the appropriate shoulders. I’ll leave it to you to place percentages on whose shoulders between the current President and the Patent Office. Real quality needs to be restored.”

    While certain steps have been taken since then, other troubling steps have also been taken. Over at the Inventive Step blog, http://inventivestep.net/2009/05/13/pto-publishes-rules-agenda-for-2009/ , the PTO power grabbing seems back in play.

  4. 2600examiner May 31, 2009 7:57 pm

    Word through the grapevine is that Kappos is the pick, but the vetting is taking longer than expected.

  5. Gene Quinn May 31, 2009 9:34 pm

    2600examiner-

    I have heard the Kappos rumors for quite a while. Any idea why the vetting is taking so long?

    -Gene