Kappos Nomination Unanimously Forwarded to Full Senate

David Kappos during his Senate Judiciary Committee nomination hearing

David Kappos during his Senate Judiciary Committee nomination hearing, July 29, 2009.

Earlier today the Senate Judiciary Committee voted to advance the nomination of David Kappos, former Vice President and Assistant General Counsel for IBM, to be Undersecretary of Commerce for Intellectual Property, a job that also comes with the title of Director of the Patent and Trademark Office.  The vote in the Judiciary Committee was unanimous, with all Democrats and Republicans present voting in the affirmative.  The hearing was held beginning at 10:00am this morning, with Judiciary Committee Chair, Senator Patrick Leahy (D-VT) stalling so he could get a quorum necessary for a vote.  Leahy began talking about an early morning ( 2:00am) filibuster.  Leahy said that he would applaud the late arrival of Senators if that would help convince them to arrive for purpose of the vote.  Leahy’s story, which really didn’t make much sense, ended and Leahy said “that has got to be 2 more Senators to show up.”  Apparently, an Intelligence Committee meeting ran late, causing some Senators to be late arrivals.  Leahy kept saying “there has to be 2 more people around.”  Another story ensued, once again about a Sergeant at Arms, and eventually Senator Schumer appeared, leaving the necessary number of Senators for a quorum down to 1.  Then Senator Leahy seemingly started quoted Grateful Dead songs, stalling further.  Then Leahy suggested that he would continue quoting Grateful Dead songs, but he feared losing Senators present, making the reaching of a quorum more unlikely.

Eventually, the stalling worked, with a quorum being reached with the arrival of several Senators.  In addition to Senator Leahy, present were Senators Sessions(R-AL), Colburn (r-OK), Kaufman (D-DE), Klobuchar (D-MN), Whitehouse (D-RI), Cardin (D-MD), Durbin (D-IL), Schumer (D-NY), Feingold (D-WI) and Feinstein (D-CA). Senator Leahy asked that all pending nominations be considered en banc.  The nominations considered en banc and forwarded to the full Senate based on a joint, unanimous, voice vote were:

  • David J. Kappos to be Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office
  • Steven Michael Dettelbach to be United States Attorney for the Northern District of Ohio
  • Carter Mitchell Stewart to be United States Attorney for the Southern District of Ohio
  • David Edward Demag to be United States Marshal for the District of Vermont

Senator Leahy then expressed appreciation to the members of the Judiciary Committee and said this being done he would see the Senators in September after the Congressional summer recess.  He then caught himself and said: “actually, drop by this afternoon.  We will have a vote on a Supreme Court nomination.”  Those in attendance chuckled.  Of course, Judge Sotomayor was confirmed by the full Senate in a 68-31 vote.

With the Senate closing business this evening without voting on David Kappos’ nomination, the earliest Kappos will become Director of the USPTO is September 8, 2009, which is the first business day post Labor Day.  Hopefully, Kappos will have his vote on the floor of the Senate shortly after the Senate returns from its summer vacation, which is indeed likely to happen.

Many in the patent bar are optimistic that someone of the stature of David Kappos, who is a patent attorney and engineer himself, will be able to fix the patent system and get things back on track.  I asked Ron Reardon, a patent agent with Patents & More, Inc. and the President of the National Association of Patent Practitioners, for his thoughts regarding Kappos.  Reardon told me:

I am optimistic that David Kappos will bring important changes to the PTO. David’s deep experience in the practice of Patent Law gives him a unique perspective of the frustrations that patent practitioners and inventors have had over the years with the USPTO. I think he is a good choice and that he will work to restore balance to the needs of the USPTO and the innovation community. The Senate should confirm him quickly and let him get to work. The majority of NAPP members, whom are members of the patent bar, are also optimistic and hopeful that his confirmation will be a breath of fresh air that will revitalize the heart of the economic engine of the United States.

This is the widespread sentiment, and one I share.  I have been cautiously optimistic about Kappos, but the more I hear about him and from him, particularly his testimony last week during his confirmation hearing in the Senate Judiciary Committee, the more I believe he is the right man for the job.  Perhaps the only thing that Kappos has to fear is that so much is expected of him, and there is such hope in the patent and innovation community.  While we are extremely hopeful, and grateful that a patent attorney has been appointed to run the Patent Office, which oddly enough is rather revolutionary, we must remember that the challenges facing the Patent Office and the patent system are real and substantial.  It took years for the problems to reach crisis status.  It will take at least some time to dig out, even with the good moves that have already started and the moves that Kappos will certainly make upon assuming the leadership role within the USPTO.  Lets just hope it doesn’t take as long as it could.

If Kappos happens to have a magic wand, or maybe a cape or utility belt, perhaps he should remember to bring those to the Office in Alexandria starting day one.  If he is able to leap tall buildings in a single bound, all the better, because it is time to roll up sleeves and become a part of the solution.  We all know what happened to get us into this mess, but finger pointing is not the solution.  From this point forward you are either a part of the problem, or a part of the solution.  I choose to be a part of the solution.  How about you?


Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Join the Discussion

8 comments so far.

  • [Avatar for scrappy]
    August 8, 2009 02:27 pm

    Jules, they classify their literature according to EPC and give each document an “XP” number, so that each document can be found by subsequent Examiners. I’ve even ordered all literature documents in particular subclasses from their Doc Services division at the utmost reasonable prices.

    We *used to* classify our cited literature too (Examiners would put copies in the shoes) before complacency hit.

    If you go to [email protected], put in just the two letters XP in the publication number field and then search by an EPC (e.g. H01L), you’ll see the bibliographic records for all literature their Examiners have classified by the very detailed European Classification system. (For example, they have classified 93,000 articles in EPC Class H01L).

  • [Avatar for Jules]
    August 8, 2009 11:58 am

    It’s not my area of expertise, APS and EAST, that is (I never heard of APS). I agree that forward-looking is good and complacent is bad. In fact, I had a good idea the other day for improved collaboration that I am trying to advance. Personally, I think my skills may be better suited for training people how to effectively use the current systems. There’s an intelligent way to do things that works much better than a mindless way. I don’t know if it is something I can transmit to others, but when you take an active interest in what you do then you can find great ways to succeed.

    I will say that full OCR’red text of all documents sounds unrealistic to me. The only reason I say that is because compared to HTML and other advanced text formats allow more advanced search options, e.g. same paragraph, sentence, etc. Maybe my view is too limited to EAST, but I think those options provide people great opportunities to intelligently search. OCR, at least in my limited view, would not allow such advanced search options, but instead may only allow keyword searching without proximity. That reminds me, I have often seen NPL documents cited in EPO examinations that were reasonably pertinent. How were they finding these documents?

  • [Avatar for scrappy]
    August 8, 2009 11:43 am

    So Jules, why doesn’t NPL prior art I cite in an electronically filed case immediately become searchable to all Examiners (by OCR/keyword) in a literature database?

    Your tip-top view is so 1990s, Jules, and self-congratulatory! (Actually APS could “focus” search results and “expand” search terms in the 1990s, which EAST still cannot do. Hehh.)

    Having a forward-looking perspective, rather than a complacent perspective, just might help the country…. Let’s work together now – we both might learn something.

  • [Avatar for Jules]
    August 8, 2009 09:45 am

    “information technology systems that are regarded as outdated”

    Aside from using an outdated version of Internet Explorer, and maybe some other minor issues, that mofo is tip-top. The problem is the people who use the systems. Many are not proficient.

  • [Avatar for scrappy]
    August 8, 2009 08:55 am

    Confirmed. And not bittersweet. (I think the practitioner fee should be a non-issue against the larger backdrop of moving the patent system forward.)

    From the PTO announcement, the truth at last:

    “He takes control of an office that provides incentives to encourage technological advancement and helps businesses protect their investments, promote their goods and safeguard against deception in the marketplace. The office continues to deal with a patent application backlog of more than 770,000, long waiting periods for patent review, information technology systems that are regarded as outdated and an application process in need of reform.”

  • [Avatar for patent leather]
    patent leather
    August 7, 2009 04:01 pm

    who is going to be the Commissioner for Patents?

    Breadcrumbs, I don’t mind the $118 fee each year, after all we pay dues anyway to our state bars. Apparently the USPTO needs the money more than we do. Whatever the PTO needs to do to clean up the mess left behind by Doll & Dudas, I say they should do.

  • [Avatar for breadcrumbs]
    August 7, 2009 09:31 am


    Bittersweet news. While expediting the expected change is good, Kappos in place on August 7th, may open the Office’s announcement of collecting the $118 practicioner fee yet this fiscal year.

  • [Avatar for Gerry Elman]
    Gerry Elman
    August 7, 2009 12:11 am

    Good news. Hal Wegner has circulated an excerpt from the Senate Calendar for Friday, August 7th, showing that the nomination of David Kappos is scheduled for a floor vote before the August recess.