Obama’s Man at the USPTO Seeks to Rehab the Agency
David Kappos spent a career at IBM. He started on the lower rungs and eventually rose to VP and assistant general counsel, overseeing the company’s massive patent and trademark portfolios. In that capacity, he sat before Congress and argued for patent reforms. Some of those proposed reforms put him at odds with many in the independent inventor community. And then last year President Obama installed him as the new director of the U.S. Patent and Trademark Office. Kappos says he supports independent inventors and small entities, even though opponents say some of his proposals would do more harm than good. Undeterred by critics, a huge budget shortfall and an increasing backlog of patent applications, Kappos seeks to reshape the world’s busiest intellectual property system.
During this week, we’re running our extended interview with Kappos, which appears in our January 2010 print edition. Here is Part III:
ID: I’m crawling out of my skin to ask you about first-to-file.
All right, let’s do it. First-to-file is one of those areas where I think there’s been a pretty significant misunderstanding or miscommunication. Here’s the way I think about the difference between so-called first-to-invent and first inventor-to-file.
Number one, first inventor-to-file does not prevent an unscrupulous copier to learn about the innovation of any innovator, whether it’s a small entity or any other, and then file a patent application. You can’t do that, because you’re a deriver and you can’t get a patent if you’re a deriver.
First inventor-to-file still requires that you make the invention. So there’s no risk of losing an invention by way of derivation.
Second thing to understand is that the U.S. is already on a first inventor-to-file system, and let me tell you why. Out of all the patent applications that get filed in this country, I think it’s .01 percent, only this incredibly small number ever make it to interference. Most of the things you do in your life have much greater probability than ever getting involved in an interference.
Stack on top of that the fact that if you do get into an interference, you’re about 70 percent likely to win it if you’re the first to have filed the patent application. Even if you do nothing – you don’t even have to show up – you are 70 percent likely to win if you’re the first to file a patent application.
You’re only 30 percent likely to win if you’re the second to file. If you add to that the fact only a small fraction of patents are filed by the small inventor community, you are well into the lightning strike probability (of getting into an interference proceeding).
You’d have to file hundreds and hundreds and hundreds of patent applications – in fact many thousands of patent applications – before you’d have any reasonable probability of finding yourself in an interference.
So we’re really debating about angels dancing on pinheads, here. We’re already essentially on the first inventor-to-file system.
ID: You’re making a rational argument, but you’re dealing with a community that sometimes embraces irrationality. So I think you have a political battle ahead of you here.
DK: No, I think of it is as change is hard for everybody. And this is the change process. And so we have to recognize that we’re going to help people through a change process and we’re going to do it in a way that doesn’t disadvantage anyone. And I am 100 percent sure that it produces a net advantage to the entire innovation community, including the small inventor community.
We’re going to have to help them through the process. Explaining the reality and facts, as I’m doing now, is one step in helping them in the process.
ID: First-to-file is big with a lot of our readers. But I guess I don’t see the first-to-file issue as the biggest proposed change you’re pushing.
DK: Yeah, post-grant review is a big deal. My main message to your readers on these two items is that the first inventor-to-file isn’t going to hurt them – it isn’t a real issue, because the probabilities are incredibly low already under our current system.
Post-grant is a real issue. But what you should know, we have advocated and I personally have spent many hours with Congress advocating changes to the legislation that are all about putting gates up to ensure that there’s no abuse, that it’s appropriately hard to get in, that anyone who does get into post-grant opposition goes through it quickly, goes through it once and gets done with it.
I truly believe that will actually increase the value of patents for small inventors, because now you’ve got a process that’s much less expensive to use, that’s going to be very quick to finish – no one’s going to hold your patent up for a long period of time. And you’ve got a gold seal of approval on that patent that’s going to make it extraordinarily hard for anyone to challenge.
We conclude the interview tomorrow …
