To start the confirmation proceedings in the Senate Judiciary Committee, Senator Patrick Leahy (D-VT) introduced David Kappos this morning with a lengthy and impressive recitation of Kappos’ credentials and experience. He started out with IBM as an engineer after graduating with highest honors from the University of California Davis with a degree in electrical and computer engineering, and moved to the legal department upon completion of his Juris Doctor degree, and then ascended through the ranks at IBM to become Vice President and and Assistant General Counsel. Senator Leahy then allowed Kappos to introduce his family members “for the Kappos archives.” After introducing his parents, Kappos then introduced his Aunt and Uncle who had come to the hearings “from their home in Vermont.” This lead to Senator Leahy saying “oh boy, you know how to get at” and then he started laughing, as did the entire gallery. Of course, Leahy is from Vermont, so Kappos was off to a good start immediately in an easy and friendly atmosphere set by Senator Leahy.
Kappos started his prepared statement by saying: “I am very grateful to President Obama and to Secretary Locke for the trust that they have placed in me.” After a few more niceties, he jumped into the substance of his remarks, which follow below:
It is exceptional and humbling under any circumstance to have the opportunity to serve one’s country, but it is particularly so for me as the son and grandson of immigrants. My father, who you met just a moment ago came to this country from Greece and my mother’s parents came to the U.S. from Italy. So the opportunity to be here today is particularly poignant for me and it is also for my family. If recommended by this Committee and confirmed by the Senate I look forward to joining Secretary Locke and his team at Commerce in their mission as stewards of American economic growth, job creation and innovation.
I have spent nearly my entire professional career in the field of intellectual property law, and indeed my entire career around technology and innovation. First as an electrical and computer engineer, then as a patent attorney handling matters before the USPTO, litigating patent disputes both as a defendant and as plaintiff, managing intellectual property matter in Asia and finally as Vice-President and Assistant General Counsel for Intellectual Property Law, managing IBM’s intellectual property interests globally. So I have seen the intellectual property system from all sides. I care passionately about this field and the role that intellectual property plays in advancing American innovation. So it is particularly exciting for me to be considered for the position of Director of the USPTO, an organization that traces its roots to the Founding Fathers and to their understanding that promoting and rewarding innovation is critical to our country’s success.
The PTO faces many challenges as we all know. Most immediate are those resulting from the economic downturn. The need for a stable and sustainable funding model. The need to address pendency concerns while preserving and enhancing patent quality and the imperative to attract and retain skilled personnel at a time of fiscal constraint. Secretary Locke has personally asked me to refashion the patent examination process to meet these challenges and in carrying forward this direction I will focus substantial personal attention within the USPTO as my top priority.
Additional challenges flow from rapid globalizing trade environment impacting trademark and patent interests as well as respect for intellectual property and the consequences where intellectual property is not respected. Longer term, the USPTO is going to need to keep abreast of the astounding pace of technological change across a broad range of scientific discipline. It must must constantly rethink how it carries out its constitutional imperative to promote innovation and scientific advancement for the public good, both in terms of the technology confronting the Office and in terms of leveraging that technology and applying the law to that technology.
So as I consider these challenges I am mindful of several things. I am mindful that the USPTO serves the interests of all innovators in this country, small and large, corporate and independent, academic and applied, and most importantly the public interest. While I have spent my career to date at a large corporate enterprise, I am familiar with the concerns of all USPTO constituents, including small and independent inventors, the venture and start-up community, public interest groups, the patent bar and many others, and I will reach out to all of them.
I am mindful of the incredible dedication of the thousands of USPTO employees and the essential role they play in the success of the US innovation system. I will work everyday with the USPTO employees and the unions that represent them to establish strong, positive relationships grounded in professional treatment for professional judgment.
I am acutely mindful that innovation today is global and that IP policy is of paramount importance not only in our country, but also in the EU, Japan, China, Brazil, India and many other developing countries. I will use my international experience and my understanding of global IP trends to help this Administration represent the interests of American innovators globally.
Finally, I am mindful that the Office for which I am being considered, working as part of Secretary Locke’s team and within the Administration’s agenda, must be intensely focused on how to serve the American people at this time of economic uncertainty.
I believe the USPTO can play a significant role in enhancing economic growth, creating jobs and advancing American innovation, and I hope to play a part in this important mission. Again, I am grateful for the opportunity to address you here today, and I am pleased to answer any questions.
Senator Orrin Hatch (R-UT) also had very kind words for Kappos, expressing his support for his nomination. Senator Hatch said he would submit questions to Kappos in writing, but he then went on to say “I am counting on you to help us do a better job up here on Capitol Hill, for the people, for innovators, for the Patent Office and we will do everything we can to assist you.”
Senator Franken (D-MN) then asked questions of Kappos, asking him if he had any thoughts of intellectual property in terms of the entertainment industry, especially in China. Kappos then answered the question, discussing mostly copyright matters and working with the international community to stop piracy, mentioning education as one particular way to help stem the tide of counterfeiting of copyrighted materials. I don’t begrudge Kappos from answering the question, but I certainly hope Kappos is not going to spend any time whatsoever on copyright matters and piracy. Given that the Patent and Trademark Office only deals with patent and trademark matters, and given that we have a Copyright Office and a Trade Representative, it would be an extraordinary mistake to have the Director of the Patent and Trademark Office spend even a second on copyright matters, despite the fact that he is also Undersecretary of Commerce for Intellectual Property. If he spends any time on copyright matters that will take away from his ability to fix the US patent system. With all do respect to the distinguished junior Senator from Minnesota (by way of Saturday Night Live and Air America), given the monumental problems facing the Patent Office and innovation and the economy in the US, it is ridiculous to be at all concerned with copyright counterfeiting overseas, and even more ridiculous to expect the Director of the Patent and Trademark Office to do anything with respect to copyrights.
Senator Jeff Sessions (R-AL) then asked Kappos if he thought he could dig into the backlog and reduce pendency if he constantly had the threat of fee diversion hanging over his head every year. Kappos then said that he is “well on the record being opposed to fee diversion.” He said that the community is fully supportive of the Patent and Trademark Office, and “will fully fund the Patent and Trademark Office, and is willing to even pay more in fees if necessary, but fee diversion has created a crisis of confidence int he user community. He also then explained that the user community is “steadfast in that it does not want to pay additional fees just to have them diverted to other government uses, as worth as those other government uses may be.”
In all, what Kappos said was certainly reassuring, and he should have absolutely no problem getting confirmed. If he does stay mindful of the needs of all those who use the USPTO, small, large and in between, and the interests of the diverse industries who sometimes need contradictory things in order to thrive, he will not only be a good leader, but he will be an exceptional leader and might really reform the Patent Office into the entity it can and should be in order to foster economic development and job creation in the US. Having written about this for many months, the fact that he sees that the USPTO can and should work toward being an agent of economic growth is music to my ears.