Obama Friend Appointed to be Deputy at USPTO

By Gene Quinn
October 6, 2009

Sharon Barner, the new USPTO Deputy Director

On Friday, October 2, 2009. U.S. Commerce Secretary Gary Locke appointed Sharon Barner to the post of deputy director of the U.S. Patent and Trademark Office (USPTO). Milwaukee Journal Sentinel reporter John Schmid reported yesterday that in a telephone interview with Barner she explained that she is a long time associate of President Barack Obama, knows him personally and has had ties to him throughout much of his political career. According to Schmid, Barner helped Obama raise funds for an Illinois state senate race; worked on a voter registration effort; and had him speak several times at symposiums that she organized. Schmid also reports that Barner will not be relocating to either Virginia or Washington, DC, but instead will remain in Chicago and somehow fulfill her responsibilities as Deputy Director of the USPTO via telecommuting. Unless the Patent Office is going to open up a regional branch office in Chicago I fail to understand how the Deputy Director can be Deputy Director from afar. The travel schedules of former Directors Rogan and Dudas raised many eyebrows, but at least they had some presence on campus at the Patent Office.

Secretary Locke said on Friday:

Sharon is a deeply qualified IP attorney and her experience is an important addition to the USPTO senior leadership as they reshape the office and work with Congress to pass comprehensive patent reform.

Barner does indeed have a wealth of experience in the intellectual property field, although as a litigator and as department head of the Intellectual Property Department at Foley & Lardner LLP in Chicago.   According to the press release issued by the USPTO, Barner has worked with clients with respect to patent, trademark and copyright disputes and also in a diverse set of technical science fields such as genetically engineered foods, computers and satellites.  I do have to wonder though how she will be able to work with senior USPTO leadership to reshape an office that she will be some 700 miles away from.  Perhaps her expertise as a litigator is being sought to attempt to get patent reform through Congress, I don’t know.  One has to wonder though given that Locke mentioned patent reform when addressing her experience and Senators Sessions and Hatch have in recent days started beating the drum once again regarding the need to make sure patent reform is sensible and does no harm.  I suspect there is more than meets the eye here, and perhaps patent reform is not as dead as it was once believed to be.  Maybe this is because the health care debates anticipated for the fall do not seem to be shaping up as debates at all and the radical reforms proposed seem to be getting more watered down by the day.  Does this mean that attention will start to shift toward issues of lesser social importance and to issues of great importance for campaign donors?  It is too early to tell, but patent reform opponents should keep a watchful eye.

The post that Barner will take, according to the USPTO press release, will be responsible for the office that “provides incentives to encourage innovation and technological advancement, and helps businesses protect their investments, promote their goods and safeguard against deception in the marketplace.”  I can read the words well enough, but what exactly does this mean?  It sounds like a lot of political doublespeak to me, you know the stuff that sounds great and highly specific but allows the reader to read in whatever they are predisposed to believe.

Maybe I am worrying here about nothing, and one thing that is for sure is Barner is highly qualified and does continue the trend of putting people in the know in high levels within the Patent Office. Over the past ten years, Barner has been featured as a top intellectual property lawyer in The National Law Journal, Black Enterprise Magazine, Diversity and the Bar and IP Law & Business and was recognized in the Illinois Super Lawyers for her intellectual property litigation work. Barner also regularly writes and lectures on several intellectual property topics including business counseling, patent litigation and risk management.  There is no question she brings a wealth of intellectual property knowledge to the Patent Office, but I just have trouble understanding the remote, telecommuting nature of her appointment.

Time will tell how this plays out, but excuse me from being skeptical, not only about how the No. 2 person at the USPTO will not actually be at the USPTO, but about her close, fundraising ties with the President.  I have to confess to being initially and enormously skeptical whenever a fundraiser is appointed to a top government position by either party.  I understand that donating money is a right, I do it myself for the candidates I believe in and support.  I also realize that raising money is a necessary evil to run for any level of political office.  So I know my reservations are unfair, but I am human.  I am willing to give the benefit of the doubt though, particularly given Barner’s exceptional credentials, and particularly given that Kappos seems to be doing all the right things so far.  Now if he would only withdraw the claims and continuations rules… but that is another story for another day.

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.

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Discuss this

There are currently 11 Comments comments.

  1. EG October 6, 2009 2:09 pm

    Gene,

    That Barner is a close friend of Obama and contributed to his campaign (time/dollars) doesn’t bother me that much. That this position is usually a “political patronage” appointment is normally, and at least unlike her predecessor (Margaret Peterlin), Barner has the necessary qualifications for the Deputy Director position (far more so then the former Directors Rogan and Dudas).

    That Barner comes from the IP litigation world also doesn’t bother me that much. At least she knows what a patent is and must have at least some knowledge of what patent prosecution is about even if she’s never actualy prosecuted one.

    But what startles me is how she plans to effectively do the Deputy Director position from the Windy City escapes me like it does you. May be this is the forerunner of “regional offices” for the PTO (that’s a bit “tongue in cheek”). May be as a litigator she’s developed a technique for handling the travel to and from DC. But that remains to be seen.

  2. Gene Quinn October 6, 2009 2:49 pm

    EG-

    I hear you and agree. The friend/fundraiser issue makes me uncomfortable, but for no valid or justifiable reason. I don’t like political patronage, but who do you have in your circle if not friends and people you can trust? Still, I am uncomfortable with it, but wanted to clearly acknowledge the non-rational nature of my bias.

    The No. 2 being 700 miles away is another matter altogether. I don’t know how that will work. If it is a precursor to regional patent offices then GREAT! Something tells me that is not the case though. We will have to wait and see.

    -Gene

  3. yapex October 7, 2009 8:54 am

    will she follow the requirements for examiner hotellers (having a remote home office, not having an office in Alexandria but instead using a hotelling room, paying for her own lodging and travel to/from the Alexandria campus, reporting to the Office at least two times every biweek, etc.)?

  4. yapex October 7, 2009 9:24 am

    will she follow the requirements for examiner hotellers (using her home as remote office, not having an office in Alexandria but instead using a hotelling room when on campus, paying for her own lodging and travel to/from the Alexandria campus, reporting to the Office at least two times every biweek, etc.)?

  5. Gene Quinn October 7, 2009 10:04 am

    Yapex-

    I just don’t know. This is something that is begging to be addressed though with more information. Even if she is hotelling, how can that be acceptable for the No. 2 person in the Office? I am either missing something altogether (yes, know I just set myself up saying that) or this is a very bad idea.

    -Gene

  6. yapex October 7, 2009 1:15 pm

    sorry for the double posts. thought my first msg’d disappeared into la-la land.

  7. Richard Belzer October 8, 2009 2:46 pm

    Gene,

    The deputy position is a presidential appointment that does not require Senate confirmation. If it did, there is virtually no chance that (tele)commuting would be acceptable. Senators can enforce their will many ways.

    On the merits of (tele)commuting, I am aware of numerous cases in which appointees choose not to relocate to Washington and physically commute. I am also aware of professional colleagues who work in Washington (often 3-4 days a week) and go home on weekends. For people whose positions mean heavy travel, it may make no difference. It is different, however, for government appointees. Because Barner lacks any credible governmental purpose to go to Chicago, she will have to pay for her own air transportation. I gather from her bio that she can afford it. But even this restriction can be finessed somewhat by scheduling travel so that being in Chicago is, well, serendipitous.

    What I do not understand is how one can do an administrative job by (tele)commuting, and I gather that the deputy’s job historically has been an administrative one. So it seems possible that she has negotiated a non-administrative portfolio, and administration will be assigned to someone else. That could work fine. But if she is going to tackle the conventional administrative job by remote control, then I foresee problems.

  8. Gene Quinn October 8, 2009 6:34 pm

    Richard-

    I just don’t know what to make of this, and think there needs to be some explanation. Perhaps there is a justifiable reason, or her duties can be performed remotely. I just don’t know. What I do know, however, is an Administration that campaigned so hard on transparency seems to leave an awful lot hanging, which leads to speculation. I would love to hear an explanation, if there is one.

    -Gene

  9. In the know November 20, 2009 10:31 am

    Sharon Barner isn’t telecommuting entirely. She has an apartment in the area. Her family (husband, kids) live in Chicago. Chicago remains her principal residence.

  10. Gene Quinn November 20, 2009 1:18 pm

    In the know-

    Thanks for the information. The source for the telecommuting information was Barner herself. She told a reporter I know that she was telecommuting right after she was announced. I can see how what you describe would be viewed as telecommuting, but would also not at all be problematic. This seems to be what Congress does. At times in my life I have done that as well, having an apartment near a school I taught at and then went home to my wife and family on the weekends. Not ideal, but very different than a permanent telecommute.

    -Gene

  11. Kristy J. Downing May 20, 2010 8:15 pm

    I have been told that Sharon Barner is “very powerful woman” on various occasions so perhaps her “powers” will serve her well in the Patent Office and before Congress. She certainly seems to enjoy throwing her weight around. I suppose she is not the first presidential appointee whose appointment can be directly tied to prior favors and fundraising though.

    Even with an extensive litigation background I think ones qualifications for administering patents can be an issue. Administration is a huge issue in the patent office both from an efficiency stand point and from a qualitative perspective. While I think “telecommuting” is an impediment to running any office effectively I am more concerned with her having a lack of experience in patent prosecution matters. What can one do at the patent office (except trademarks) without being a registered attorney or agent? How can one then oversee the administration of a practice in which they themselves have never practiced? I think the telecommuting and politics-over-practice attitude evidences a lack of commitment to the nuts and bolts of the practice. Without a genuine commitment it does not matter how much experience in anything you have. If you could leave the Patent Office off of your resume for the first 20 years I don’t know why you want to come in at a leadership level to put it on there.

    I think most of us would like to see anyone who has a concrete plan to bring better efficiency and qualitative reviews of applications to the PTO. Congress has enough to worry about before they start delving into patent law.