Washington – On Tuesday, August 10, President Barack Obama signed into law P.L. 111-224 that gives the United States Patent and Trademark Office (USPTO) the authority to spend an additional $129 million of the fees the agency will collect in Fiscal Year (FY) 2010. Due to an improving economy and increased patent examination productivity, the agency projects it will collect nearly $200 million more than its FY 2010 appropriation of $1.887 billion.

David Kappos told CBS the biggest problem is the backlog and the PTO needs more money. "It's no taxpayer dollars at all-- all the fees we collect come from patent applicants."

Straight from the “it’s about time” department comes breaking word that the so-called popular press are finally identifying the most under reported news story of this recession.  The United States Patent and Trademark Office is foundering and it needs more money in order to do its job.  That alone ought to be newsworthy, but add the fact that the Patent Office is the one agency of government with the ability to recognize assets out of whole cloth and have industry organically grow as a direct result and without ANY taxpayer dollars.  The fact that the Patent Office can without any taxpayer dollars directly influence and creation of new, high paying jobs makes it virtually criminal that the elite press, who has reported on virtually every angle of this recession, has ignored the engine that could get us out of this mess.

Director Kappos discusses matters with Arti Rai.

On July 19, 2010, I was granted behind the scenes access to observe the United States Patent and Trademark Office. From 11am to 7pm I trailed David Kappos, the Under Secretary for Commerce for Intellectual Property and the Director of the United States Patent and Trademark Office. My hosts for the day were primarily Peter Pappas, Chief Communications Officer and Senior Advisor to Kappos, and one of his top lieutenants, Jennifer Rankin Byrne. As I went through the day I met members of the Senior Staff, some of whom I already knew and others who I was meeting for the first time, and sat in on a series of meetings with Director Kappos.

David Kappos, Under Secretary of Commerce and USPTO Director

On Monday, July 19, 2010, I was granted behind the scenes access to the United States Patent and Trademark Office, and was allowed to follow USPTO Director David Kappos throughout the day as he went from meeting to meeting. I have already chronicled much of the events of the day in the previous article– Behind the Scenes: A Day in the Life of David Kappos. At the end of the day I was granted a 30 minute interview with Director Kappos, which appears below.

In this interview Kappos discusses with me his management style, his famously long hours, how he manages to inspire the Office to work harder than ever before, his efforts to get funding for the Office, how the USPTO can help innovators create new businesses and new jobs, and how to inspire young people to do public service. We also learn that he and Judge Rader share the same favorite movie (see Judge Rader Interview at the end), he likes Star Trek and Star Wars equally (an astute political answer no doubt) and the famous American inventor he would like to meet is a “Mount Rushmore” inventor.

USPTO Director David Kappos in his office on the 10th floor of the Madison Building on July 19, 2010

On July 19, 2010, I was granted a back stage pass of sorts, for a behind-the-scenes look at the United States Patent and Trademark Office. I had initially requested an interview with Director David Kappos and was given an affirmative response, but then I floated the idea of a three-part series to commemorate the first anniversary of David Kappos leaving the private sector to take the helm at the USPTO. Kappos was confirmed by the United States Senate on August 7, 2009, and formally sworn in by Commerce Secretary Gary Locke on August 13, 2009.

Rather than just do an interview, I suggested something different. I had heard from numerous sources at the Patent Office that David Kappos is an extremely hard worker, coming to work by 7:00am and leaving most nights after 7:00pm. I had also heard over and over about his regular evening and weekend e-mail exchanges with his Senior Staff. It was apparent to me that Kappos is not like most political appointees, and unlike many, if not most, of the previous PTO Directors. So I thought it might be particularly interesting to profile a day in the life of David Kappos, much like the President allows certain journalists to do by giving them access to the White House for a day, with an associated tour and interview. Peter Pappas, the Chief Communications Officer and Senior Advisor to Kappos, liked the idea and agreed to work with me to get it scheduled. It was tentatively scheduled for July 20, 2010, but with the Three Track hearings that day it was moved up to Monday, July 19, 2010.

Yesterday the United States Patent and Trademark Office held a public meeting on the so-called Three Track examination proposal, with everyone in agreement that the proposal is quite welcome, at least in principle.  On June 4, 2010, the USPTO published a Notice in the Federal Register setting out the preliminary Three Track proposal and setting Tuesday, July 20, 2010 as a date for the public to come to the Alexandria, Virginia campus to let PTO Officials hear their thoughts.  This public meeting proceeds the due date of written comments by a full month, and many of those who spoke explained they would continue to review the proposal and follow up with additional written comments.  For more information on the specifics of the proposal please see USPTO Announces New Examination Rules.

One thing can be said definitively: everyone thinks it is a good idea, no one has issues with accelerating applications (Track 1) or allowing them to remain on course as today (Track 2), but there were numerous concerns raised about applicants slowing applications down (Track 3).  The good news for the PTO, however, is that speaker after speaker highlighted the same or similar concerns, so it does appear as if there are a finite set of manageable considerations for the PTO to address.  In fact, the senior PTO Officials that I spoke with after the public meeting were extremely pleased and quite grateful.  I was told by one senior PTO Official that the points raised were all good and that the PTO intends to take them into consideration and address the concerns, along with whatever written feedback they receive.  What a refreshing change that will be!

USPTO Headquarters, Alexandria, VA

The United States Patent and Trademark Office (USPTO) will be holding a public roundtable discussion on its proposed Enhanced Examination Timing Control Initiative, also known as “Three-Track,” currently under consideration by the USPTO. The purpose of the roundtable meeting is to solicit opinions from the public on the proposed initiative. The meeting will be held on Tuesday, July 20, 2010, from 1:30 p.m. to 5:30 p.m. at the USPTO headquarters in the Madison Building Auditorium, which is located at 600 Dulany Street, Alexandria, VA, 22314. The meeting will also be webcast. Web cast information is available on the USPTO’s website by visiting http://www.uspto.gov/patents/announce/3track.jsp.

The proposed ”Three-Track” initiative would provide applicants greater control over when their applications are examined and promote greater efficiency in the patent examination process. The proposal is designed to provide applicants with the timing of examination they need and to reduce pendency of patent applications.

Nick Godici

Nick Godici, the former Acting Director of the United States Patent and Trademark Office, sat down with me on Tuesday, June 29, 2010, for an extended interview. Nick is one of a select few who have seen the Patent Office on every level, from patent examiner, to SPE, to Group Director, Commissioner for Patents and ultimately Acting Director. In Part 1 of the interview we discussed his philosophy on examining patent application, the historic allowance rate vs. the depressed allowance rate of the pre-Kappos PTO and a variety of other topics. In Part 2 we discussed how President Obama’s approach to revitalizing the USPTO under Director Kappos’ direction parallels President Reagan’s attempts under Gerry Mossinghoff. We also discussed building relationships between patent examiners and the patent bar, what the PTO is likely doing to announce 101 guidelines in the wake of Bilski v. Kappos, and what it is like to be Director of the USPTO.

In this final installment of my interview with Nick Godici we learn just how close the Patent Office was to sending out 9,000 furlough notices (to all those on the patent side of the building) during the Summer of 2009 as a result of lack of funds. We also discuss the historic patent allowance rate versus the 42% rate the Patent Office got down to during the Q1 of 2009.  Godici also humors me by answering the fun questions and we learn that he was the primary examiner on a somewhat famous (or infamous) patent relating to a bird trap and a cat feeder, and he goes off the board with an interesting selection for most famous fictional inventor.

Congressman Conyers seems interested in providing funding to the USPTO

Recently the United States Patent and Trademark Office released its draft Strategic Plan for FY 2010 – 2015.  This may seem odd given that FY 2010 is almost over, ending on September 30, 2010.  So it is probably a better title to call it the FY 2011 – 2015 Strategic Plan, but there is no doubt as you read the document that under the guidance of Director David Kappos the USPTO has already well launched the short term Strategic Plan.  Now if Congress would only be wise enough to grant funding for the Patent Office to actually accomplish what needs to be done!

Truth be told, it would be enough for Congress to just (1) stop siphoning off money from the USPTO through fee diversion; (2) grant the USPTO fee setting authority; and (3) stand out of the way.  So my message to Congress would be this: put the pocketbook down, slowly step back and raise your hands over your head so we can see them!

Madison Building, USPTO Headquarters

Draft plan sets priorities to strengthen the USPTO, drive innovation and support economic growth

Washington – Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (USPTO) David Kappos announced today that the USPTO’s draft Strategic Plan for fiscal years (FY) 2010-2015 is posted for public review and comment on the USPTO Web site at www.uspto.gov.

The draft 2010-2015 Strategic Plan sets out the USPTO’s mission-focused strategic goals: to optimize patent quality and timeliness; to optimize trademark quality and timeliness; and to provide global and domestic leadership to improve intellectual property (IP) policy, protection, and enforcement worldwide.

David Kappos interviewed by Joff Wild, editor of IAM magazine

USPTO Director David Kappos made one of his rare excursions outside of the US at the end of June when he flew to Munich to take part in the IP Business Congress, organised by IAM – the magazine which I edit. Speaking to 450 delegates, many of them heads of IP at large corporations and SMEs, Kappos was clear that he has a major task in getting the USPTO fit for purpose and able to meet the myriad challenges it faces. I also discussed many of these with him in an interview we recorded at the congress.

Although he has only been in his job for a little under a year, Kappos is a well-known figure in Europe. He was a frequent traveller across the Atlantic during his time as head of IP at IBM and as a result has met many senior figures at the European Patent Office, as well as corporate IP big hitters. And you can say the same about Asia too. As a result, when it comes to the international aspects of his job, there has been no big learning curve. Kappos was familiar with the major issues already. It will come as no surprise to any reader of this blog to know that these are focused on closer co-operation between patent offices in order to improve quality, lower costs and reduce the huge patent backlog.

Public and Private Sector Leaders Meet to Discuss Copyright in the Internet Economy

WASHINGTON – Today, U.S. Commerce Secretary Gary Locke gathered with leaders from the public and private sectors to discuss the relationship between copyright policy, creativity and innovation in the Internet economy as part of a symposium co-hosted by the Commerce Department’s United States Patent and Trademark Office (USPTO) and the National Telecommunications and Information Administration (NTIA) at the Ronald Reagan Building and International Trade Center.

Changes will mark the first updates to standards in nearly 25 years

WASHINGTON – Management at the United States Patent and Trademark Office has been working with representatives of the patent examiners union, the Patent Office Professional Association (POPA), to better align the performance standards for patent examiners with the USPTO’s goals for increasing quality in patent examination and reducing the backlog of pending patent applications, Under Secretary of Commerce for Intellectual Property and Director of the USPTO David Kappos announced today. If adopted, the joint task force’s changes would be the first major revision to the patent examiners’ performance appraisal plan (PAP) since 1986.

Last week the United States Patent and Trademark Office announced that the Office entered into a no-cost, two-year agreement with Google to make bulk electronic patent and trademark public data available to the public in bulk form.   Under this agreement, the USPTO is providing Google with existing bulk, electronic files, which Google will host without modification for the public free of charge.   This bulk data can be accessed at http://www.google.com/googlebooks/uspto.html.

According to the USPTO, it does not currently have the technical capability to provide this public information in a bulk machine readable format that is desired by the intellectual property (IP) community.  This arrangement is to serve as a bridge as the USPTO develops an acquisition strategy which will allow the USPTO to enter into a contract with a contractor to retrieve and distribute USPTO patent and trademark bulk public data.  The contractor will be capable of acquiring this bulk data and providing it to the public.

Earlier today the official notice promised regarding the introduction of a Three-Track patent processing initiative was published in the Federal Register. It was not exactly what I expected, and perhaps I jumped the gun a bit, believing that what was to be published would be proposed rules. Instead, what was published was a detailed call for comments and the announcement of a public meeting to discuss the proposals sketched out. The public meeting will take place at the United States Patent and Trademark Office on July 20, 2010.

Reading the Federal Register Notice made me realize just how much things have changed over the last 18 months at the USPTO. During the Bush Administration the Patent Office largely treated patent professionals and applicants as the enemy; the ones really to blame for all the problems facing the Patent Office and the patent system. Odd coming from a Republican Administration, but that was indeed what we lived with. Now, however, the Patent Office seems to realize that they do not have a monopoly on good ideas, listen, act on what good ideas they like and seek further input from the community in order to refine and build out the ideas and initiatives they seek to implement. The flip in policy and approach is almost surreal.

Kappos speaking at Center for American Progress, 6/2/2010, hinted of a major rulemaking announcement.

UPDATE: For discussion of the Federal Register Notice see USPTO Announces New Examination Rules, Seeks Comment on 33 Questions.

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The United States Patent and Trademark Office is seeking public comment on a major new patent examination initiative that would provide applicants greater control over the speed with which their applications are examined and promote greater efficiency in the patent examination process.  This newly proposed Three-Track program aims to provide applicants with the ability to go faster or slower through the patent process, which will in turn hopefully reduce the pendency of those patent applications that are the most time sensitive.

There will likely be those who oppose this Three-Track proposal, but as far as I can tell what is being proposed is a mechanism to speed your application up or slow your application down. Up until I attended the BIO International Conference in early May 2010 I couldn’t imagine why anyone would want to slow the process down, but there are indeed many who would prefer a slower patent process. I most often work in the software, computer and Internet technology areas where the patent process is extremely slow and getting fast patents is extremely important to attract investors and gain traction. In the biotech, pharma and University sectors, however, there is a great preference for a slower process because basic research is being undertaken and that might not ultimately prove fruitful.

Kappos delivers speech at Center for American Progress, 6/2/2010

Earlier today the Center for American Progress hosted a speech given by David Kappos, Undersecretary of Commerce for Intellectual Property and the Director of the United States Patent and Trademark Office.  The speech was open to the public, RSVP was required and space was limited.  A light lunch was served.  I was lucky enough to be present as a member of the Press, and unlike the United States Supreme Court which requires members of the press to sit in partial view seats behind the tall pillars with an extremely large diameter, the Center for American Progress reserved front row seating for the press.  Not that such front row treatment is required, but it sure does make taking pictures far more easy, but I digress.

A packed room of at least 200 individuals, including the newly retired Chief Judge Paul Michel, former USPTO Director Q. Todd Dickinson, former USPTO Director Bruce Lehman and others listened to Kappos give an impassioned speech about how innovation can create jobs, how the Patent Office is unfortunately continuing to hold jobs hostage due to a staggering backlog of pending patent applications and how American economic security depends upon development of a comprehensive national IP strategy.  This is something near and dear to my own heart, as readers of IPWatchdog.com know I have been beating that drum since before Kappos was appointed (for example see this, this, this and that; and more recently here and here, among many others).  But can Director Kappos persuade Members of Congress and others in the Executive Branch of the truth we all know?

On Friday, May 28, 2010, USPTO Director David Kappos gave five suggestions for practitioners on the Director’s Forum (i.e., the Kappos blog). The first two suggestions caught my attention because they are things that I have been writing about for quite some time. First, set up an interview.  Second, set for your arguments and be prepared to discuss what makes the invention new and distinguished over the prior art.

It would be wonderful if such things could occur in the prosecution of every case, but unfortunately the Federal Circuit has effectively prevented that from happening and forced upon the USPTO and the practicing patent bar a game of hide the ball, which benefits no one.  With Congress not stepping up to the plate any time soon to do anything useful for the patent system there may be only one hope left; namely to get the CAFC judges to examine patent applications, sitting by designation, so they can better understand the mess they have created.

In yet another attempt to expedite important patent applications through the examination process the United States Patent and Trademark Office announced earlier today that it is revising its Green Technology Pilot Program.  The revision in the program will allow more categories of technology to be eligible for expedited processing under the USPTO green initiative, which allows for the expediting of patent applications through the examination process. Eligibility for the pilot program, which was designed to promote the development of green technologies, had previously been limited to applications within a select number of classifications, with only about one-third of applications for special status being granted.

The United States Patent and Trademark Office today announced two news items relative to its efforts to expand international work sharing arrangements. First, On May 19, 2010, USPTO Director David Kappos and China’s State Intellectual Property Office (SIPO) Commissioner Tian Lipu signed a Memorandum of Understanding (MOU) on comprehensive bilateral cooperation on patents. The signing took place during a signing ceremony held at the USPTO campus in Alexandria, Virginia. Second, in a separate and seemingly unrelated item, the USPTO also announced today that it would eliminate the fee for the petition to participate in Patent Prosecution Highway (PPH) programs. The elimination of the PPH petition fee is expected to encourage greater PPH participation by patent applicants. The good news is that yet more is being done to address the backlog and pendency.  But I am still hoping for a plan aimed straight at independent inventors and start-up businesses here in the U.S.