Russ Slifer is formerly Chief Patent Counsel for Micron Technology, where he developed an effective worldwide patent portfolio strategy. He was also a Principal at Schwegman Lundberg & Woessner in Minneapolis. Slifer has also been President of the Association of Corporate Patent Counsel, and a Board Member of the Intellectual Property Owner Association. Most recently, however, Slifer had the honor of having the one of the longest title in politics, serving as Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the United States Patent and Trademark Office (USPTO).
Slifer served as Deputy Director of the USPTO for almost two full years, and was Regional Director of the Rocky Mountain Patent Office for 9 months prior to ascending to the role of Deputy. During his time at the Patent Office I tried on a variety of occasions to get an interview with Slifer, but obviously those efforts went for naught. Upon Slifer resigning I was in communication with him and let him know that I was interested in an interview. He agreed. The interview that begins below took place via telephone on Monday, March 20, 2017.
As you will see from the transcript, nothing was out of bounds, although because of time we didn’t get into everything. Slifer did agree to come back for more in the coming months, specifically relating to a discussion about patent eligibility, and we will be following up on this specific ideas relating to inter partes review (which you will hear him mention in Part 1 of the interview and which we return to in Part 2). We did discuss the turmoil at the end of the Obama Administration and the fact that he did resign, as requested, effective January 20, 2017. We also discussed the mechanics of resignation, getting things done on a government timetable, how being Deputy Director was an extremely rewarding job, his view that a fee increase is absolutely essential and that Tony Scardino makes an excellent Acting Deputy Director. In the final segment, which will be part 3, we also spend some time getting to know Russ a little more, talking about movies, sports, music and more.
Without further ado, what follows is part one of my three-part interview with Russ Slifer.
QUINN: Thanks, Russ, for taking the time to chat with me today I really appreciate it. I guess maybe the first place to start might be is with what you doing now that you’ve left the Patent Office. Do you know what you’re going to be doing? Are you taking some time off? Fill us in.
SLIFER: Well, I’ve been taking time off after the PTO, after the inauguration I headed to Florida for a conference and then packed up and left Washington to head back to Boise, Idaho and took a few weeks to drive back. I did some golfing, visited friends and just kind of basically took a little sabbatical for the last couple of months. As far the future goes I haven’t quite decided yet what I’m going to do. I’m looking for something that would be challenging whether it’s for a company or law firm, or something else, I haven’t decided what I’m going to do yet in the future.
QUINN: Do you have a timetable, or are you just going to play it as it goes?
SLIFER: I don’t have a timetable per se, but obviously I don’t want to sit idle for too long. There are things for me to do here on my property in Boise but I really should get back to what I’m good at. So I’m figuring another month or two and I’ll be employed again somewhere.
QUINN: Okay. Now maybe starting backwards, since we started at that end of the conversation, I think a lot of us have been watching what’s been going on at the Patent Office with great interest and I don’t know whether you want to get involved on commenting on that and if you do that’d be great, but since so many of us aren’t ever going to be in a position to be appointed to a job like that I was wondering if you could give us a sense of what goes on at the end of an Administration. You hear stories that at the end of a President’s term the Administration ask for all the political appointees to submit a letter of resignation. But how does that work? I mean mechanically what goes on? Can you fill us in a little bit?
SLIFER: Sure I can try to add a little bit of light. Each department in the Executive branch, let’s say the Department of Commerce has a White House liaison that interfaces between the political appointees that are under the Department of Commerce and the White House regarding employment issues. So when we’re approaching the end of an administration they’re working with us on the transition out. They provided us a letter that came from the White House, let’s see, I think it was probably in December, maybe early December that outlined that the President wanted all of our letters of resignation on file by a certain date and our intended date of departure. We were instructed that our resignation would be no later than noon on January 20th. So we basically got an instruction from the White House that they wanted everybody’s resignation letter and what it would say in it.
QUINN: And I’ve reported this and I think maybe others have as well, and I think you confirmed this on LinkedIn, but you actually did resign as requested on January 20th, correct?
SLIFER: Yes, I submitted my letter of resignation before Christmas that indicated that my last time in the office would be January 20th at noon. I guess you could say that I stayed until the very end that I was allowed to stay.
QUINN: Yes, and that’s fairly common. That’s what I’ve seen with other Directors and Deputy Directors, although I suppose that’s a fairly new position. The letter of resignation is dated for Inauguration Day at noon, which is when the inauguration actually happens. That’s really common I guess.
QUINN: Do you have any knowledge or do you want to talk at all about what was going on at the Patent Office during that last week of the Obama Administration? I mean it seems like there is this – well let me say that from my perspective the problem is that there has been no real information. That then creates a vacuum and in this vacuum rumors swirl. It’s just a mess in my opinion. And I can’t believe we are here almost two and a half months later and we still really don’t know what happened, although I guess we do know now that Michelle remains Director although there has been no official announcement from either the White House, Department of Commerce or the Patent Office.
SLIFER: I guess I can address it a little bit, although I’ve left the office so anything that’s transpired since then I’m not privy to first-hand. Certainly when a political appointee files a letter of resignation it’s up to both the current President and the incoming President to decide if they want that individual to resign or not. They can agree to not accept that letter of resignation and leave an individual in place to transition from one Administration to the next, however, without some kind of affirmative action that letter of resignation is going to take effect. So I think from what you’ve seen, and the acknowledgement that Director Lee is still at the USPTO, that both the incoming Administration and the outgoing Administration agreed to withdraw, or not accept, the letter of resignation and allow her to stay on to run the agency.
QUINN: And I guess that’s the interesting thing here is that it’s not as clean as it might be in the private sector where you submit a letter of resignation and it is either accepted or it is not accepted. There are two people involved and then the President – or in reality the President probably isn’t really involved in this as much as we might like to think – so perhaps better to say the President’s people who are working with that particular agency, or in the case of the transition team the people on the transition team get together. So there are two entities involved in whether to accept or carry someone over.
SLIFER: Well, let me just say the basic reason for asking political appointees to resign on inauguration is to make the transition easier for the incoming Administration. Clear the deck for them so that they can bring in their own people. If for some reason an incoming Administration would like somebody to stay on because they feel like that would make it better for them for whatever reason, the current Administration at the time would accommodate that. The whole reason, as I said, for resigning is to make it easier for the incoming Administration. So if they’ve got a desire to keep somebody then that can be accommodated as long as it’s done with sufficient time to allow that to happen before the resignation officially takes effect on the 20th. So with me obviously there was no intervention to ask me to stay or withdraw my letter of resignation and I just moved on at the date and the time that I said that I would.
QUINN: Yes. Now I know, and I’m transitioning the conversation a little bit into your time as Deputy. I think I know, I think I can say that you were to some extent intimately involved with the PTAB, right? I mean that was one of the areas of your oversight when you were at the office. Is that correct?
SLIFER: Yes. The way Michelle Lee and myself kind of operated we treated our roles kind of like a CEO and a COO role so for me on a day-to-day basis I was handling the operations of the agency. And from that standpoint certainly the PTAB fell under that area of responsibility.
QUINN: Okay. I know we had occasion to have some conversation at the time about the PTAB and you were always very well briefed on what was going on at the PTAB. So your portfolio extended beyond that. It wasn’t that Michelle was taking care of certain things and you were taking care of other things, which is I think how certain others may have organized the Office, but that makes sense now.
QUINN: So just to get an idea. I know there was some stuff going on about the PTAB and I guess you could probably called me, or not you but people in general might call me a PTAB critic and I suppose that’s fair. But I don’t want to put any words in your mouth. So let me ask this: When you are out and about talking about the PTAB, maybe to an industry audience, which is who I suppose will probably this interview will reach, what are the things that you want them to know about what the PTAB is and maybe particularly what you were trying to accomplish when you were Deputy?
SLIFER: Well, you can look at the PTAB from different perspectives. And one perspective is operationally. Getting the judges that we needed to get onboard and staffed up so that they can handle IPRs and so they can also work on bringing the inventory of ex parte appeals down, you know, the operational structure of the PTAB. Or we could focus on the proceedings, the IPR, PGR proceedings in how those are going. So you know they are two different things one making sure that the organization is up and running and sufficiently staffed. And, two, dealing with policies or procedures on how the PTAB is conducting IPRs. Once the America Invents Act took effect the first action was to set up the proceedings for IPR’s and Director Kappos worked hard on that. And worked with Chief Judge James Smith building a team of judges. The office created procedures trying to follow Congress’ intent. For Director Lee and myself it was trying to take it to the next level now that we’ve got the PTAB up and staffed. The PTAB had conducted IPRs for a couple of years so the focus was on how we improve that. And our goal was to try to make changes carefully. And I know there’s a lot of criticism and critiques about things that could be done differently and how to improve. I’ve got a list myself of things that I think could be done to balance the scales better perhaps than they are right now. But some of those changes that we worked through as we had Nate Kelly as Acting Chief Judge for a while and now Chief Judge David Ruschke is to make more precedential decisions and to work with the public, one, to find out if there is actual data behind some of the perception of the imbalance. If there is how do we make changes to it. So it was really more of a hand on the rudder than trying to make drastic changes and perhaps we weren’t moving fast enough but what we were trying to do is not cause more harm than what we were trying to correct.
QUINN: Did you feel maybe a little constrained by the reality that by the time – particularly by the time that you had gotten into being Deputy – the idea that any kind of grandiose changes could occur during an Obama term were pretty much zero. I mean I wouldn’t say zero but the gears of government move at a certain speed, and with any changes that maybe could have been made it was getting a little bit close to the end of the Obama Presidency to really undertake much of consequence. And that’s my word. I mean, feel free to disagree with how I’m characterizing it.
SLIFER: Well, certainly as you’re getting close to the end of the Administration making radical changes is not impossible. But there is also a point where you want to make sure that whatever changes that you’re bringing onboard you’re able to see through to the end of whatever it is. So going out with a lot of rulemaking or changes in the PTAB only to perhaps have a vacancy for six to ten, twelve months until a new Director was appointed would affect your thinking about it, okay, maybe you say let’s not make any drastic changes at the moment and allow the next Director to address those issues. But other than that I wouldn’t say that the Obama Administration was instructing the PTO in any way not to address issues if issues needed to be addressed.
QUINN: And that wasn’t what I was trying to get at and I guess. I wasn’t – I don’t know whether I ask the question entirely accurate. You were Deputy for two years, correct?
QUINN: And creating the PTAB rules in the first place was a full time job for about 13 months I suppose or at least a year. And then now that it’s in place once you get any system in place you have entrenched interest that like it the way that it is and then in this case with the PTAB you have a bunch of interests that don’t like it the way that it is and want change. Once you get too sides of any dynamic then making changes, even small changes, is not as easy as people might think. Or at least that’s my observation after watching the way things work in DC and at the end of the day the PTO is a DC agency.
SLIFER: I agree with you. I agree with what you’re saying and certainly going back to long before I joined the patent office there are groups entrenched on both side of whether we should have IPRs at all, or what kind of patent reform should we have, and the sides haven’t changed that much. There is the group obviously that like having the ability to challenge a validity of a patent in front of the PTO. And there are industries, segments that don’t like the idea at all. Somewhere it has to reach the middle ground. Somewhere we have to have the ability to have patents that should be reviewed by the patent office, but we should have a balanced system so that it’s not abused very easily by any party and that nobody gets caught in a meat grinder. So, yes, the PTO is dealing with entrenched positions. And one unfortunate, and I think incorrect, criticism of Director Lee is that she’s somehow anti-patent or supporting one industry, tech industry over the other. And that’s certainly nothing I ever experienced – after two and half of years of working closely with her I would have noticed a bias. Michelle is an engineer, like many of us are, and she would like to hear from all parties and see the data before making changes. So when you look at changes to the PTAB she wants to see data. Are there abuses? You’ll hear that from one side and so she would ask the team to look into the numbers, find out exactly what’s going on, and then if that’s the case then let’s make a change. So it’s not necessarily DC or government slowing things down with bureaucracy, a lot of this is let’s not throw the baby out with the bathwater, let’s make sure that the changes that we’re making are being done for the right reasons and that it’s not just being done because, you know, they’re just anecdotal issues as opposed to real issues. I don’t know if that’s clear.
QUINN: That makes sense. And what I meant with the slowing down on DC time was just the amount of notice that has to happen to do anything. When publishing in the Federal Register and having the hearings and the roundtables like the Patent Office always does. Then taking the comments back in and going through them. And I can’t speak to whether that really happens at other agencies, but in my time observing in the Patent Office at least over the last eight years, when notice is put out comments are very seriously taken and considered. I think that also has to come through when you see the output on the Final Rules, which do change. And the comments answer many issues that were raised. So all of that just takes a lot of time and that’s what I meant by not being able to accomplish anything unfortunately.
SLIFER: At some point a decision has to be made based upon those roundtables, based upon the comments. Oftentimes we’d get some good feedback that would help us improve what we had. Sometimes it wasn’t that helpful and a decision would have to be made. But you’re right, there’s a long lag time between hearing about an issue, finding what a proposed solution would be, putting out a register, getting the comments back and actually implementing it.
CLICK HERE to CONTINUE READING… Up next is a discussion of some ways the USPTO can address IPR abuses and stop harassment of patent owners.