The Senate Judiciary Committee has announced that the confirmation hearing for David Kappos, who is President Barack Obama’s nominee to be Undersecretary of Commerce for Intellectual Property and the Director of the United States Patent and Trademark Office, will be held on Wednesday, July 29, 2009 at 10:00 am Eastern Time in the in Room 226 of the Senate Dirksen Office Building. I had been predicting that the Kappos hearing would be pushed off, until at least after the August recess, given that Judge Sonia Sotomayor has still not has not been confirmed in the Senate, Cap and Trade legislation remains pending and the Obama health care reform initiative is taking up enormous amounts of time, and has turned extremely contentious. It is hard to exactly know what the scheduling of the Kappos hearing before the August Congressional recess means, at least in any behind the scenes or reading of the tea leaves sense.
Notwithstanding, a little speculation never hurt anyone, right? In any event, has Kappos’ hearing become possible because President Obama has finally stopped demanding that Congress act on health care reform before the August recess, and last night said he wanted some kind of bill to be enacted before the end of calendar 2009? Does this mean that the full Senate will not vote to confirm Sotomayor before the August recess and is turning to other matters? Does it mean that Cap and Trade has fully fallen off the table for now and there is more time to engage in other matters? Perhaps it just means that the Senate wants to limp into the recess without any more hot button issues that will need to be explained when they go home to meet constituents. But with a Kappos nomination moving forward so quickly, why exactly was Nick Godici brought back to the USPTO earlier this month?
What I was hearing is that Nick Godici was brought back to the Patent Office a few weeks ago so that he could start what will undoubtedly be the long process of fixing the USPTO. It is no great secret that former PTO Director James Rogan did not help the Patent Office, and that his replacement, the now former PTO Director Jon Dudas, also did not help and instead affirmatively made things worse. When Dudas left his chief lieutenant, John Doll, was elevated to Acting Director. I do not know John Doll personally, but there is no doubt that the many in the patent industry who do know him do not exactly hold him in high regard, and in fact seem to lay more blame at the feet of Doll than Dudas. After all, Dudas came to the PTO with legislative experience. Doll rose through the ranks at the USPTO, and seemed to convince Dudas to repeatedly institute bad policy after bad policy, which has lead to extremely low morale at the Patent Office, an enormous and ever-growing backlog of patent applications and a steep rise in the average time a patent application remains pending.
There is much work to be done at the Patent Office, and an experienced and respected leader like Nick Godici can certainly contribute, but why bring him back with the Kappos hearing coming so soon? It seemed as if the Obama Administration brought Godici back as a consultant because there was no desire to wait idle until Kappos was finally confirmed by the Senate. It made a lot of sense to put a career official inside the USPTO to start moving forward with the President’s agenda. I suspected that Godici would lay a lot of the groundwork for when Kappos takes over, and I also suspected that perhaps when Kappos officially took over Godici would stay on as Commissioner for Patents and continue to manage the day to day affairs associated with running the Patent Office. With an imminent Kappos hearing perhaps that makes this scenario even more likely.
I have tremendous respect for what Acting Commissioner Peggy Focarino is doing to streamline the patent process and get examiners to understand that if there is allowable subject matter they should work with the patent applicants both early in the process and later in the process to attempt to facilitate more patents being issued, and quicker patents being issued. I personally would be happy to see Focarino stay in the role of Commissioner for Patents, but if Nick Godici slides into that role and Focarino returns to be the Deputy Commissioner for Patent Operations, which is the position she immediately held before becoming Acting Commissioner, that would leave the top 3 spots at the USPTO in the very capable hands of Kappos, Godici and Focarino. With that type of leadership the Patent Office would have an excellent opportunity to figure out its problems and chart a responsible reform course moving forward.
But what about John Doll? I do not have any inside information, and everyone seems to have an opinion or speculation as to what will happen. I have heard everything from John Doll returning to one of the Technology Centers to him retiring and moving into private practice. Time will tell, but if I were in that position I think I would ride off into the sunset and head into private practice, collecting a nice large check from some big law firm that would like to be able to promote the hiring of a former Acting Director and former Patent Commissioner.