Sneak Peek of Interview with David Kappos

By Gene Quinn
December 4, 2009

USPTO Director David Kappos

USPTO Director David Kappos

Mike Drummond, the Editor of Inventors Digest, sat down for an interview with David Kappos a few weeks ago while he was in Alexandria, Virginia, attending the Independent Inventors Conference. As has probably become apparent over the last several months Mike and I have been cooperating on a number of projects, sharing articles and doing some cross promotion. While I am just a patent attorney with an attitude, a particular point of view and one who can type super fast without looking at the keys, Mike is a real journalist. He has done a couple journalistic tours in Iraq and was nominated for the Pulitzer Prize for work he did while writing for the Charlotte Observer. So while I sometimes pretend to interview people, Drummond is the real deal. With a little arm twisting I was able to convince him to give me a sneak peek of his interview with David Kappos, the new Undersecretary of Commerce for Intellectual Property and the Director of the Patent and Trademark Office. What follows are excerpts from Drummond’s exclusive interview with Kappos. You can read the full story in the magazine’s January 2010 issue, which if you are not getting you really should! So subscribe to Inventors Digest today!  Oh yes… to keep within the spirit of the obviously unconstitutional FTC endorsement guidelines that went into effect on December 1, 2009, I am endorsing Inventors Digest and suggesting you should subscribe because I think it is an excellent magazine.  It also happens to be the only place you can read the full Kappos interview with Mike Drummond. Inventors Digest did not pay me to say that, and those who know me know that no one could pay me enough to say something I don’t believe!  So I hope you are happy FTC police, and please don’t come knocking!

Before diving into some of the Q & A between Drummond and Kappos, setting the stage is probably appropriate.  Most reading are probably well aware of the fact that the Patent Office is facing a $200 million budget shortfall and this has compelled Kappos to continue a hiring freeze and do without much needed computer and IT upgrades.  But did you know that as a result of attrition the overall size of the examining core has shrunk from its all time high earlier this year?  So with over 800,000 applications awaiting first action and a computer system that Union President Robert Budens has described as being held together with “bubble gum and bailing wire” (see second paragraph here), Kappos has an enormous challenge in front of him, and one that will be made all the harder unless Congress opens up the nation’s wallet, or credit card, and comes up with the funds necessary to help the Patent Office dig out from the mess created by years of mismanagement.

Now, without further ado, his a first peek at a small portion of the Kappos’ interview with Inventors Digest.

DRUMMOND: Let’s start with the backlog – is this the new normal?

KAPPOS: It is not going to be the new normal. It’s not acceptable.

Every patent application that we sit on is an American job not being created. And it’s a product that’s not going to market. It’s someone’s life that’s not being saved. It’s growth for our country that’s not being delivered.

We cannot settle for the backlog to become the status quo. It’s our mission to cut that backlog down very very substantially. We’re putting in place the system and the processes in this office to enable us to get to 10 months average pendency to first office action and 20 months average pendency to disposition.

 

DRUMMOND: How are you going to get there? What’s the alchemy? You stated the goal, but what are some of the steps you’re going to take?

KAPPOS: This is like any hard management problem. You solve it not by doing one thing, but a number of things.

The first part to the solution is the count system reform that we’ve already announced.

*****

Part two is re-engineering of our patent office processes. You wouldn’t believe how complicated our patent processes are.

*****

Another one I’ll mention that’s really important for independent inventors is encouraging early interviews in patent applications. I was shocked when I reviewed the numbers. The percentage of applicants who receive notices of allowance and incredibly fast issuance of their patents just went through the roof when you use the early, one-on-one consultations with examiners.

*****

 

DRUMMOND: In March 2009, while representing IBM and before President Obama announced your nomination, you told the Senate Committee on the Judiciary that the quality of patents has diminished. You still believe that?

KAPPOS: I think clearly over the 20 years I’ve been practicing the quality of patents has diminished. Do I think it’s diminishing today? To tell you the truth, I think the level of quality of the patents coming out of the USPTO has at least stabilized.

*****

I can tell you that Drummond also asked some pointed questions about whether work sharing is code for outsourcing, he asked Kappos to address his critics that have suggested he will do the bidding of IBM, possible fee increases were also discussed, as was having the amount of the fee being paid being consistent with the amount of service provided by the Patent Office.  So what are you waiting for?  Subscribe to Inventors Digest today!  And to the FTC police who are watching, remember, I accepted no money for writing this, I just think it is a great magazine!

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 as of the time of publication 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. sburch December 5, 2009 9:27 pm

    I have a question that is tangently related. I haven’t had a patent law class yet, my knowledge of patents comes mainly from software blogs, and my googling of the answer didn’t really help.
    You stated in a previous comment that time was important in determining if an idea was patentable or not (something that seems obvious today may not have seemed so obvious when it was patented). And when I did a google search, it seems like we have a first to invent rule, and there is some controversy as to whether it should be first to file.
    Here is the hypo: if inventor A creates a new process in January and files a patent on a process that same month and the patent office is swamped and doesn’t make any record of the process until July. In the mean time inventor B creates the same process in March and files for a patent in March. Under the the current rules (and the first to file rule) inventor A has the valid patent (I think).
    And finally, here is the question: Would the fact that inventor B created the same process independently and around the same time as inventor B be enough to prove that the process was obvious/non-novel?

  2. Gene Quinn December 5, 2009 9:51 pm

    sburch-

    With respect to your second question, the fact that someone else did it independently around the same time has absolutely no bearing on whether the invention is obvious or novel. In fact, in many areas that is exactly what happens. It is to be expected when multiple research teams are looking for solutions to the same problems.

    Your first hypothetical is a little more complex, at least in part because it couldn’t happen. Assuming you file the application properly it is considered filed the second it leaves you regardless of whether the Patent Office ever receives it. But under your hypothetical A would win in both a first to invent and a first to file system.

    You may find it useful to take a look at this, regarding the risk of not filing a patent immediately:
    http://www.ipwatchdog.com/2009/10/30/the-risk-of-not-immediately-filing-a-patent-application/id=7014/

    -Gene

  3. sburch December 5, 2009 11:44 pm

    Thanks for the response. Before I started law school I was certain about quite a few things that, once I learned the actual law and not just what politicians and lay-people had to say about it, became not so clear. Right now, I am certain that the patent system in its current state is incredibly broken. If I understand things correctly, the goal of the patent system is to encourage innovation by giving people who invest time and money in research and development a temporary monopoly over their findings. If that is the goal, I completely agree with it, but I just don’t think that the way things are implemented now accomplish that goal very well. And I think this situation is another one of the problems.

    If two people independently come up with the same process, product, etc at approximately the same time and without knowledge of the other, it seems to me that the process, product, etc could not possibly be non-obvious and novel. How could it?

    And, I think that this hurts innovation as well. By granting a patent to inventor A, inventor B has not only lost the time and money that it spent in research, they can’t even use there new process in house without first licensing it from inventor A. I was hoping that the answer to my question would be that because there were two independent creations of the same thing, no patent would be granted and both inventors would be free to use and market their inventions. But, if I understand correctly, inventor B can not even use his own invention without first licensing it from A.

    BTW, the relation to this article came from me thinking that if the patent office is backed up, there would be a longer amount of time between the submission of a patent and its appearance in a search. That would mean that B would have a longer time to continue to put time and money into an idea that ultimately he will not be able to use without having any way to know that inventor A has already filed.

  4. Mr. Xaminer December 7, 2009 11:27 pm

    Upper management at the PTO usually filters down info through middle management (overpaid SPEs who do not examine a single case) but I think many examiners are unaware of the actual attrition rate. I’m sure some examiners have left this year, but it doesn’t seem like as many as in the past because of the iffy job market out there. Thanks to the Kappos interview there seems to be some light shed on the subject. The examiner attrition is not surprising because we’ve had a limited amount of overtime reinstated the last couple of months (about 32% of what we once could work), so that’s probably to make up some of the examining hours that were lost due to attrition.
    Finally, to ALL attorneys and agents: in order for the newly adjusted production system to work as hoped and bring down the PTO backlog, I STRONGLY SUGGEST that if an examiner calls you up to try and advance prosecution please make an effort to cooperate rather than just stating “oh just send out the rejection”. I know that will still happen some, but the new system gives examiners an incentive to advance prosecution with the applicants via examiner-initiated interviews and it’s going to take cooperation in return for the system to truly work.