On July 19, 2010, I was granted a back stage pass of sorts, for a behind-the-scenes look at the United States Patent and Trademark Office. I had initially requested an interview with Director David Kappos and was given an affirmative response, but then I floated the idea of a three-part series to commemorate the first anniversary of David Kappos leaving the private sector to take the helm at the USPTO. Kappos was confirmed by the United States Senate on August 7, 2009, and formally sworn in by Commerce Secretary Gary Locke on August 13, 2009.
Rather than just do an interview, I suggested something different. I had heard from numerous sources at the Patent Office that David Kappos is an extremely hard worker, coming to work by 7:00am and leaving most nights after 7:00pm. I had also heard over and over about his regular evening and weekend e-mail exchanges with his Senior Staff. It was apparent to me that Kappos is not like most political appointees, and unlike many, if not most, of the previous PTO Directors. So I thought it might be particularly interesting to profile a day in the life of David Kappos, much like the President allows certain journalists to do by giving them access to the White House for a day, with an associated tour and interview. Peter Pappas, the Chief Communications Officer and Senior Advisor to Kappos, liked the idea and agreed to work with me to get it scheduled. It was tentatively scheduled for July 20, 2010, but with the Three Track hearings that day it was moved up to Monday, July 19, 2010.
I arrived at the Patent Office as per our agreement at 11:00am. Those familiar with David Kappos, who is referred to as “Dave” and sometimes as “DK” at the Office, know he does not start his day at 11:00am; he usually arrives at the office at about 6:45am. He normally takes the Metro to and from work each day from his residence in D.C. and frequently chats with examiners during his commute. Kappos was in Boston the day before our interview, and was to take the first flight out of Boston back to Northern Virginia on the morning of July 19, hence the later than usual start time for my day with the Director. It probably doesn’t come as a surprise to those who know Kappos, but he was restless to get back and instead of taking the first flight out on the 19th he took a late flight on the 18th, and was in his office at 6:50am on July 19. I also learned that his deputy, Sharon Barner, routinely catches a 5 am flight from her hometown of Chicago most Monday mornings so she gets to the office in time to meet with Kappos at 8 am. I am told that Patents Commissioner Bob Stoll and External Affairs Administrator Arti Rai, both key Kappos lieutenants, also keep very long hours. In fact, hard work seems to be the norm on the “10th floor” and this type of dedication to the job seems to be a constant and recurring theme at the USPTO. You will read more about Kappos’ Senior Staff in Part Three of this series, titled Behind the Scenes: The USPTO Senior Staff, which is scheduled to be published on IPWatchdog.com on Wednesday, August 4, 2010.
Plainly put, Kappos is driven and his workload is staggering. He came to the Patent Office with a mission. And as you will hear in my interview with him (which will be Part Two of the series, and which is scheduled to be published on IPWatchdog.com on Monday, August 2, 2010) he treats every day like it could be his last day given that he serves “at the pleasure of the President.” His drive to reform the Patent Office and his nearly frantic work schedule is a testament to his desire to get the job done in whatever length of time he is given at the helm of the Office.
An example of what I will call Kappos’ “get it done” philosophy was on display during a joint meeting of the IT department and the legal team responsible for writing the Manual of Patent Examining Procedures (MPEP). Sadly, one of the reasons the MPEP is not as useful as it could or should be is because the vendor of the computer platform went out of business and the system they are using cannot be updated from a technical standpoint and it has outlived its usefulness. Kappos and his team have identified a new platform that the IT department has tested and likes, and which is also acceptable to the legal team. During the meeting Commissioner Bob Stoll commented that, upon implementation, a Board decision that is issued today could be in the official copy of the MPEP the next day, which would be an extraordinarily fast turn-around. In any event, as the conversation unfolded Kappos at one point said: “if we are going to fail at something, we prefer to fail fast so we can move on to the next thing.” What Kappos was saying is that he doesn’t want to linger and wait too long to see whether something is going to work. He wants the system put through its paces and a determination made by IT and legal quickly as to whether it is the right platform or not . He wants the decision made with all due speed because if a new platform needs to be adopted he wants that decision made quickly so the PTO can get on with improvements. He does not want the PTO languishing for many months with a platform or system that doesn’t make the departments happy and doesn’t fulfill the needs of the PTO and the applicant community.
As I spent the day going from meeting to meeting, observing Kappos’ day, meeting the Senior Staff, many of whom I already knew, and talking to everyone, it became clear that this was not an unusual day. Multiple phone calls, one from a Member of Parliament in the United Kingdom and another from a law professor at Howard University who is working on a pro bono project and conference, to meeting after meeting. I was told repeatedly by those I encountered that this was a very typical day for Kappos, who keeps moving at a fast pace from the time he enters the building early in the morning until the time he leaves the Office at night. Throughout his busy day, Kappos seems to maintain a low-key and affable management style.
Of course, there will be some who think this was an unrealistic day in the life of David Kappos. While I can’t say with 100% certainty, I can say with certitude that what I saw and what I was told is 100% consistent with what I have heard many times over the last year in countless off the record conversations with examiners and Senior Staff. Kappos is a workaholic who really cares about the patent system and the mission of the USPTO. Whether it is on the record or off the record everyone at the PTO, and those outside but with intimate knowledge of what is going on behind the walls on the 10th floor of the Madison Building, will tell you that everyone at the Office is enthusiastic and that Kappos is a great leader.
When I originally started hearing just how great Kappos was from everyone, I was perplexed. It seemed as if he was either exactly what the Patent Office needed or there had been a thorough and complete brainwashing of everyone involved. Neither seemed plausible, although the brainwashing thing seemed more likely to me at first than a Presidential appointment being the perfect man for the job. But no one, and I mean no one, is complaining, and I can tell you that Kappos is getting the most out of his Senior Staff and those managers on lower levels as well. He works a lot and he demands a lot, but his passion seems to be contagious because everyone is working hard and no one complains. Kappos’ leadership style is one that seems to inspire and motivate his senior team. Astonishing really.
The most common story I hear from those within the Patent Office is that Kappos practically works day and night. While a roughly 7am to 7pm schedule is a lot by government standards, it is not crazy by private sector standards. Kappos was after all, most recently Vice-President in charge of IP at IBM, and managed the largest IP department in the world. But repeatedly I hear about e-mails flying furiously at all hours of the evening and early morning, and all day on Saturday and Sunday. One member of the Senior Staff pulled out his Blackberry to make a point. I had previously been told by someone at the PTO that everyone now has their Blackberry surgically attached to his or her hip because “the boss is an e-mail fiend.” In any event, this Senior Staff member covered up the subject lines, which were displayed in the middle of the screen and then said, “Just look at the time of the day that these were sent.” When I looked at the screen all that was visible was the name of the sender and the time stamp. As messages were scrolled down it was clear that Kappos and his leadership team swap e-mails with great frequency late into the evenings, even on Saturdays and Sundays until nearly midnight and sometimes even later. Yet no one complains, not even off the record and in private. It seems that everyone believes they are participating in something special, and a few have even told me just that. I even witnessed some throughout the day joking with each other about “being out of contact” or “not responding to e-mails” for a few hours over the weekend. At the same time, one senior staff member commented that Kappos takes the time to respond thoughtfully to each and every e-mail he receives and is always available to meet or confer with his senior staff.
The other thing that I witnessed worthy of particular note is the fact that throughout the day, in almost every conversation, Kappos weaves certain reminders into discussions. A good example would be what Kappos casually interjected during a discussion with members of the Commissioner’s staff who are engaged in a project to better report actual pendency of patent applications. Pendency is a hot topic in the IP Community and there is general agreement that the traditional method of measuring pendency does not cover all situations. Therefore, Kappos and his patents and communications teams, have been working on a new patent dashboard that will allow the PTO data to be more transparent and accessible. The team is going to use multiple metrics and allow for the information to quickly and easily be displayed through a visual interface or Dashboard. During the “Dashboard Meeting” Kappos, speaking of the data, explained: “it is owned by the people of the United States, why wouldn’t we want to let them see it?” Everyone was on the same page, and no one was suggesting the data shouldn’t be seen, but the project seeks to spoon feed users some information and continually allow them to drill down further through sets of data until anyone can, if they are interested, see the raw data. The team is proposing to add three or four new measures of pendency — for example, to more accurately reflect pendency with RCE’S. Later in the day he casually said to his Senior Staff: “We are here to serve our country.” Kappos is, indeed, taking transparency to a new and seldom seen level at the USPTO and constantly mindful that, while he works at the pleasure of the President, he works for the American people.
Another thing noteworthy is that Kappos is a very hands-on leader, who participates in the drafting and editing of documents. He is not merely there to sign Federal Register Notices, although he does indeed sign those Notices. One of the benefits of having someone in the position who is a patent attorney and who is intimately familiar with the patent system is that he can meaningfully participate, draft and edit documents and he routinely does so. Kappos also blogs weekly, both externally and in-house. He is not merely a politician, and frankly it is probably unfair to even consider him a politician. He is a patent attorney and an engineer with deep substantive expertise who just so happens to be running the USPTO, what a novel idea!
In terms of his management style, I would call Kappos’ style easy, laid back and yet firm. There was never any question as to who in the room was the man in charge, and I suspect an alien from another world could have told who the leader was after observing the meeting for a while. But upon entering the room it would have been difficult in most of the meetings because Kappos did not sit at the visible “head of the table.” He was down-to-earth and cordial with everyone. It seemed time and time again he would want to know what the timetable was for this or that, and those responding would always become a bit uncomfortable and start qualifying. He would allow for this, but would always come back and want a firm answer without any wiggling. To a person they would always respond that they could meet the deadline previously agreed, hoping that would make Kappos happy, which it invariably did. Of course, if it could be done competently but faster, that was his preference in every situation. Like any good leader there were “homework assignments” detailing what he wanted to see next and getting everyone to buy into the next stage.
One of the meetings I attended was the “Bilski Meeting,” which was to finalize and approve the now finalized and published Interim Bilski Guidelines. The meeting was attended by a who’s who of leadership. At this meeting were Director Kappos, Commissioner Bob Stoll, Solicitor Ray Chen, Board of Appeals Chief Judge Michael Fleming, Chief of Staff Drew Hirshfeld, Acting Associate Commissioner for Patent Examination Policy Bob Bahr, Communications Chief Peter Pappas and others. Deputy Director Sharon Barner, who was traveling, phoned in to participate. This was the pretty much the same team that assembled on June 28, 2010, in rapid action form to discuss and agree what initial guidance needed to be sent to the patent examiners as a result of the Supreme Court decision in Bilski v. Kappos. This group discussed and agreed on the preliminary guidance and wanted to get it out quickly to examiners who would have questions. It was decided collectively on June 28, 2010, that the memo would be sent out by Bob Bahr because historically these types of memos are sent to the examining corps by the Associate Commissioner for Patent Examination Policy. However, two senior level meetings were held on the day the Bilski decision came out, and Director Kappos and Commissioner Stoll, as well as Solicitor Ray Chen were deeply involved in drafting the initial guidance. Kappos reportedly cut short a meeting at the White House to return to the office to personally edit and approve the guidance that Stoll, Chen and Bahr drafted with the assistance of Arti Rai.
Truthfully, there was not much substantive debate at the “Bilski Meeting,” which seemed more like a “speak now or forever hold your peace” meeting designed to finalize and sign off on this guidance. For obvious reasons, no legal advice was given or discussed in my presence, per our previous arrangement. The heavy lifting had already been done and Kappos had over the weekend read through the proposed Federal Register Notice one final time, redlined the document throughout and edited the final draft personally, which I am told he does with all Federal Register Notices and memos to the examining corps. So the meeting was to go over the Director’s final edits. It sounded like there had been many drafts from Kappos leading up to this, and everyone in the room was rather jubilant and obviously pleased with the work product they collectively worked together to create. One quasi-substantive suggestion was made, which was to drive home one more time at the beginning of the Notice the fact that Section 101 is a threshold inquiry and examiners should focus on 102, 103 and 112 rejections rather than leaping to 101. All were in agreement saying it was already there, but if it could be made more clear then get it done. The final draft with this minor edit was then to be sent to the Office of Management and Budget (OMB) for approval. OMB had been kept in the loop throughout and speedy approval was anticipated, which did, in fact, happen. After obtaining OMB approval Kappos signed the Federal Register Notice on July 21, 2010, just two days later, and just over three weeks after the Supreme Court issued the decision.
Finally, one more thing is worthy of noting here and now. While I saw Kappos in many different contexts, in meetings, on the telephone, in the halls and in the USPTO cafeteria, throughout the day one thing seemed to make him satisfied beyond everything else. Late in the day he had a telephone call with Professor Lateef Mtima of Howard University. Professor Mtima is planning a conference for sometime this Fall, likely in September, to focus on providing legal assistance to inventors who have great ideas and inventions but no, or limited, capital to pursue their inventions. Kappos is working hard with several law schools and law firms to create a pro bono program to help those inventors. He talks about how you never know which invention could be the one innovation to create a whole new industry and help create many jobs. He and his staff talk about their responsibility to help those independent inventors who may lack resources, including helping those individuals find reputable legal advice and not fall prey to those in the industry who sometimes take advantage of this segment of the inventing community. In fact, Kappos’ communications team established a bi-weekly newsletter called “Inventors Eye” that is designed to be a resource for that community. At the end of this call he exclaimed: “This has been the best call of the day.” I believed he meant it, and didn’t mean any disrespect to anyone else he spoke with or had meetings with. He was just trying to do good by and for disadvantaged inventors who need pro bono assistance.
What a day it was; July 19, 2010.