USPTO Director David Kappos made one of his rare excursions outside of the US at the end of June when he flew to Munich to take part in the IP Business Congress, organised by IAM – the magazine which I edit. Speaking to 450 delegates, many of them heads of IP at large corporations and SMEs, Kappos was clear that he has a major task in getting the USPTO fit for purpose and able to meet the myriad challenges it faces. I also discussed many of these with him in an interview we recorded at the congress.
Although he has only been in his job for a little under a year, Kappos is a well-known figure in Europe. He was a frequent traveller across the Atlantic during his time as head of IP at IBM and as a result has met many senior figures at the European Patent Office, as well as corporate IP big hitters. And you can say the same about Asia too. As a result, when it comes to the international aspects of his job, there has been no big learning curve. Kappos was familiar with the major issues already. It will come as no surprise to any reader of this blog to know that these are focused on closer co-operation between patent offices in order to improve quality, lower costs and reduce the huge patent backlog.
What makes Kappos different from his contemporaries, however, is the mandate he has for the job he was appointed to do. Unlike the presidents of the other big five patent offices – the EPO, the Japan Patent Office, the Korean IP Office and China’s State IP Office – Kappos is a political appointment, not a civil servant.
In Europe, France’s Benoît Battistelli has just become the new president of the EPO for an initial fixed term of five years. He was chosen by the EPO’s Administrative Council, which is made up of representatives from national patent offices in Europe. The election process began in October 2009 and did not end until February 2010. A number of votes were held before Battistelli secured the 75% majority he needed. Although he beat off three other candidates to emerge triumphant, not one of the votes was held in public. Nor have we ever been told their outcomes in terms of who voted for whom and why. As a result, no-one in Europe knows why Battistelli is thought to be the best person for the job (which is not to say that he isn’t, of course).
By contrast, we know exactly why Kappos ended up at the USPTO. He was nominated by the Obama Administration, which felt he had the experience and credentials to turn the office around, and then confirmed by the Senate Judiciary Committee after a public hearing. In other words, it was a completely transparent appointment process. This gives Kappos real authority to do his job, as well as real clout. He can engage with the USPTO’s user community and its staff secure in the knowledge that he has the full confidence of Commerce Secretary Gary Locke and, by implication, the backing of the US president; not forgetting the Senate’s seal of approval. That’s a powerful combination and pretty hard to argue with.
Maybe this is why Kappos feels confident enough to meet regularly in public with stakeholders in the US patent system, to write a blog accessible to everyone, to listen to what others have to say and, crucially, to tell them what he thinks. Hearing Kappos talk about the USPTO’s wider role as an enabler of innovation in the US, and therefore of job and wealth creation, must be music to US practitioners’ ears. But it is also language that goes beyond process into policy. As a political appointment, though, Kappos has the freedom to do that. Most important of all, however, Kappos’s mandate gives him the authority to make big decisions quickly – from reforming the way examiners are assessed and rewarded, through placing greater emphasis on the PCT and PPH, to reworking a creaking office IT infrastructure.
Of course, none of this would be positive if the USPTO Director was someone who was out of his depth. But he is not. Here is someone who has worked in patents for over 20 years, knows the problems from the USPTO user’s perspective and has firm ideas about how they can be fixed. Beyond a few serial malcontents, I have yet to meet anyone with a bad word to say about the job Kappos is doing. I began covering US patent issues as a journalist in 1992 and perhaps the only other USPTO Director you could say the same for in all that time is Todd Dickinson, who held the post during the second Clinton presidency in the late 1990s.
In the end, though, it is not what people say and think about David Kappos now that really matters. Instead, it is how they will view the impact his tenure had after he has left the USPTO which is really going to count. He may have made a promising start, but it’s what comes next that will determine whether his time in charge at the office will be seen as a success. When he spoke in Munich, Kappos likened his task to driving an oil tanker. So far, it would be fair to say that he has recognised there are major problems and he has slammed on the brakes. What he has yet to do is turn the ship around, let alone steer it back to port. Kappos’s task is to speed up the examination process and improve quality, while at the same time eating into the backlog. If he can do all of that he will deserve his place in the history books.