David J. Kappos Enjoys Wide Support from Big Tech to Big Biomed

Wealth of Ideas Newsletter, June 2009

On June 18, President Obama ended months of anxious speculation when he nominated David J. Kappos to be the Director of the United States Patent and Trademark Office (USPTO). The response by the IP community to the nomination has been generally positive.

As a veteran of the patent system and the manager of IBM’s patent portfolio for many years, Kappos, in the past, has been vocal about patent reform. But will he be too busy trying to rescue the USPTO from collapsing under its own weight to push for those reforms? This month we take a look at David Kappos’ nomination, what he brings to the USPTO, and industry response to the nomination.

Kappos’ Background

To say that Kappos comes from corporate America is an understatement. He has managed IBM’s patent portfolio for years, and IBM is one of the top recipients of US patents – in 2008 alone, IBM had 4,169 patents issued. At the same time, however, IBM has embraced open source technology and Kappos understands the concerns of the open source movement. In fact, he testified before the Senate that patents and other IP can sometimes get in the way of collaboration and open standards.

Stance on Patent Reform

Not surprisingly (for an IBM executive), Kappos has been a strong supporter of a patent reform. With a belief in the power of patents and open source at the same time, what sort of patent reform does Kappos advocate?

• A post-grant review (one year after a patent is granted), which would allow comments from others in the patent’s field of technology about why the patent should not have been allowed.
  
• Pre-issuance submissions of information (after the patent application is made public) by third parties questioning the novelty of the invention or offering evidence of why the patent shouldn’t be issued.
  
• Enhanced inter partes reexaminations to allow third parties yet another way to challenge “bad” or weak patents.
  
• Different standards of royalty-based damages and other restrictions aimed at reducing patent litigation.

It is only to be expected that Mr. Kappos will chime in very soon in support of the Patent Reform Act of 2009.

No Time for Criticism

Critics say that Kappos is an “IBM lifer” who is “big high tech personified,” but also grudgingly admit that he has the management experience that the USPTO so desperately needs right now. Just consider the job awaiting the next USPTO director: 9,000 employees, over 751,000 patent applications awaiting review and an average application-filing-to-approval time of almost three years.

Kappos’ nomination has thus received the support of both “big tech” and the biomedical industry, which have butted heads many times over aspects of patent reform.

“We urge the Senate to move quickly to consider Mr. Kappos’ nomination,” said Jim Greenwood, the President and CEO of BIO (the Biotechnology Industry Organization), in a brief statement on June 19. “The USPTO needs a confirmed leader as soon as possible.”

“It would be difficult to envision a new USPTO director who understands the U.S. and global patent system better than Dave Kappos,” wrote Microsoft’s Deputy General Counsel, Horatio Gutierrez, in a blog post, also on June 19.

If Microsoft likes Mr. Kappos’ nomination as the next Director of the USPTO, small and independent inventors need to be worried.