There’s been a lot of rumor and speculation in recent weeks that since Gary Locke was confirmed as Secretary of Commerce, Pres. Obama is going to shortly nominate a new director of the PTO. Then, there was some discussion that has come from patent commentator Hal Wegner that a candidate had been chosen and was being vetted by the administration prior to a public announcement.
Some of this momentum may have gotten side-tracked by the announcement that Justice David Souter will be retiring from the Supreme Court at the end of the current term and by Sen. Arlen Specter (D-PA), previously the ranking member of the Senate Judiciary Committee, switching parties. Clearly, a new Supreme Court justice is bigger political news than who will be the new director of the PTO.
First, it is worth noting that there have not been any leaks (to my knowledge) as to whom the administration plans to nominate. Thus, the following is conjecture and rumor. That being said, three names continue to dominate the discussion.
Q. Todd Dickinson
The first potential nominee has been discussed since at least January (and probably earlier) as a possible director. As I noted previously:
Another name that has been mentioned is former PTO Director Q. Todd Dickinson. Dickinson is the recently-named executive director of the American Intellectual Property Law Association (AIPLA) and is a registered patent attorney. Prior to his tenure as PTO Director, Dickinson was Chief Counsel for Intellectual Property and Technology at Sun Corporation and also worked in the IP departments at Chevron and Baxter Travenol Labs. Dickinson clearly meets the desire for a patent savvy director.
Dickinson was director of the PTO from 1998-2001 under President Clinton. With Dickinson at the helm, the PTO was allowing patents at rate of over 70%. Depending on the side of the issues that you are on, some may argue that this was the hay day for innovation and invention, while others would argue that this was the beginning of the problems with the patent system with the allowance of too many “bad” patents. I don’t intend to get into that debate here, but it is worth noting that this would be a significant change from the current system with rates barely over 40%.
AIPLA has always been fairly pro-patent on the issues. With Dickinson as executive director, AIPLA has continued this stance on the issues, filing an amicus brief in support of the petitioner in Bilski and urging the Federal Circuit not to proscribe patents for biomedical diagnostic tools, among others.
The second name that has generated a lot of speculation is David Kappos, vice president and assistant general counsel in charge of intellectual property for IBM. Mr. Kappos has been at IBM since 1983. He is also a member of the board of directors of the Intellectual Property Owners Association (IPO).
IBM perennially leads all corporations in the number U.S. patents obtained. Mr. Kappos testified at the Senate Judiciary Committee hearing on patent reform in March where he argued that the reform bill should include provisions related to the “essential features” of the invention to determine damages. He cited the Supreme Court’s opinion in Quanta Mechanics v. LG Electronics, a case having nothing to do with damage apportionment, relating instead to patent exhaustion.
Let’s face it, the PTO is a mess. Mr. Kappos is clearly qualified to lead the clean up efforts, such as fixing the failing IT infrastructure. He also clearly has the management experience necessary for the job.
His name has become a lightning rod of late for those that disfavor strong patent protection. For example, patent pundit Greg Aharonian has compared a Kappos directorship to having Bernie Madoff run the SEC. Aharonian argues that although Kappos purports to favor improvements in patent quality, his company continues to receive large numbers of “crappy” patents.
Patently-O has reviewed Mr. Kappos’s record and given a reserved endorsement of his potential nomination. Prof. Crouch notes that Kappos clearly understands the value of innovation and would do a good job of healing the rift between patent examiners and applicants (not to mention PTO management).
His reservations against Kappos’s potential nomination include that he is too IBM-centric, having worked there for over 25 years. The rest of the world does not operate as IBM does. He may make changes that harm small companies and individual inventors to benefit large companies such as IBM. Statements like “people no longer innovate individually” do not bode well for these groups.
The third name that has been raised is James Pooley, litigation partner in Morrison and Foerster’s Silicon Valley office. Mr. Pooley has a distinguished career as an intellectual property litigator and served as president of AIPLA from 2007-08.
There seems to be a good deal less information circulating about Mr. Pooley than about the other candidates. This could be a good thing or a bad thing.
Any of these candidates would be a significant improvement over the more recent political appointments for the PTO directorship. In general, the Bush Administration used the post as a reward for political friends regardless of qualifications. If these are indeed the candidates being reviewed, there is cause for optimism.
Of the two candidates about which more is known, Q. Todd Dickinson would be the more popular choice among members of the patent community. He has done the job before and done reasonably well. He may not want to have to fix all of the current problems that require fixing.
Let’s hope an announcement is forthcoming in the near future.