Obama’s Man at the USPTO Seeks to Rehab the Agency
ID: You were an articulate advocate for IBM’s position vis a vis patent reform. There’s a lot of chatter about IBM now has its man at the top of the USPTO. Can you address the criticism, if you want to call it that, that David Kappos is going to be doing IBM’s bidding?
DK: To frame that question in a more positive way, I offer the following. In initiatives I just told you about, this is something conceived to help an important part of the economy that does not include the large business sector.
The proposals and approach that I have been championing relative to post-grant opposition, which is something that we still need to talk about, is since I’ve been at the USPTO, has been to tighten post-grant, to make it harder to get into post-grant, which is something that favors again the small inventor community, and the university community. And many would say the chemistry and pharma community, and it’s not something that’s been a position that the information technology sector as taken up.
We even put into place for post-grant opposition a whole series of changes that we recommended to Congress. They’re all about tightening post-grant opposition to make it harder to get in and to make it impossible to have serial oppositions in the USPTO and to ensure we get those done quickly so that patents that do go through post-grant get certainty and assurance as to title.
All of those initiatives are initiatives that are informed by my deep understanding of the system, but with absolutely no backing from the information technology industry. (The initiatives) are about doing the right thing for the system, not the right thing for any one customer.
ID: So you’re here to be head of the USPTO, not to advance another agenda.
DK: Exactly. If I wanted to be head of any particular companies in the IT sector, I could have gone there and stayed there.
ID: Are you a betting man at all?
DK: No, not really.
ID: OK. But what do you think the odds are that Congress will grant you the authority to set fees?
DK: I don’t know. It’s in Congress’ hands. And we’ll work with whatever Congress decides. We’re not waiting for fee-setting authority. We’re not waiting for patent reform. We are rolling on re-engineering this patent system from top to bottom. You’re the first person in the world outside this office to know about the small-inventor initiative. We’re not waiting for anyone to help us. We’re helping ourselves.
Now, would I like to have signatory authority? I don’t care about having it personally. It’s just another responsibility. Do I think it’s the right thing for the USPTO? Absolutely.
There’s no way that we can viably ask Congress to reset fees at a pace that’s fast enough to keep up with the pace of innovation. You have a terrific time-constant mismatch. The time-constant of innovation is months, years at the very longest. The time-constant of Congress is inherently many years.
So as long as we’re in a position where we have to take every fee adjustment to Congress, we’re going to be hopelessly behind the pace of innovation. And that’s not good for your constituency. It’s not good for the American public. It’s not good for the entire intellectual property and innovation community.
ID: Last question. 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?
DK: It is sort of a point-in-time statement. 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. And I think might have improved a little bit, and this is a credit to moves made before I was here.
I don’t think the level of quality is currently deteriorating. If anything, it may be improving slightly. But that’s the problem. We don’t have good ways of measuring it. So that’s another thing we’re re-engineering in the patent system right now.
We’re not waiting for anyone to help us with this. We’re completely going through the way we measure quality, how we can incent and reward quality, and we’re completely changing all of the systems.
What I realize, coming from a business background, is that unless you’ve got a very crisp way to understand the quality of your processes, you’ve got a big problem on your hands.