PublishedNovember 28, 2012

Life after David Kappos: What should President Obama look for in the next head of the US Patent and Trademark Office?

Numerous outlets reported Monday that the current head of the Patent and Trademark Office (USPTO), David Kappos, would be stepping down.  While we have disagreed with Kappos at Patent Progress, especially over his positions on software patents in his recent speech at the Center for American Progress, Kappos has moved the USPTO in the right direction.  We are hopeful that whomever is next will continue the momentum created by Kappos, work diligently to move forward with implementation of the America Invents Act, and most importantly bring an understanding of the current problems in the patent system, acknowledge they exist, and work towards fixing them.

First and foremost, the current system of granting patents at the USPTO incentivizes the granting of a patent by examiners.  The end goal of the USPTO should not be to grant patents — rather they should focus on maintaining the integrity of our patent system and how that is in the public interest.  Just as denial of patents that should be granted can undermine the system, the granting of abstract and obvious patents by the USPTO over the last 25 years has also undermined the integrity of the system.  Kappos has repeatedly refused to recognize that this is a problem, which prevents any type of regulatory fix to the problem.  Whomever the Obama administration taps as his replacement needs to understand this.

Second, whomever is appointed needs to understand the purpose of the USPTO beyond the view held by the patent bar.  The person tapped to lead the agency must recognize that the patent system, and the USPTO’s role in it, is about more than just patent prosecution.  It would be nice to see a non-attorney get appointed to the position.  A substantive knowledge of the economics of patents as well as the scientific research and development process would bring a perspective to the agency that someone who has spent their entire career as a patent attorney often lacks.

Additionally, it is important that the person who gets appointed understands the magnitude and effect of the troll problem.  When the director of the agency states publicly that we don’t have a software patent problem, as Kappos did, it suggests otherwise.  Trolls cost our economy upwards of $29 billion a year and the majority of trolls operate in the software industry.  That alone is evidence that we have a problem.  Additionally, trolls tend to use older patents towards the end of their term, well beyond the useful life of the product they were additionally granted for.  Many of these patents are abstract or obvious and never should have been issued in the first place.  The USPTO has a duty to do something about the troll problem and have a clear understanding of their role in creating it.  Stating that we don’t have a software patent problem is the exact opposite.

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Josh Lamel

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