I wish I had some inside information to pass along, but I do not. All I can seem to come up with is unsubstantiated rumor and innuendo, but the report the other day from Patently-O that Duke Law Professor Arti Rai is heading to the Patent Office to fill a long vacant policy setting position has too much of a ring of truth to completely ignore. There have long been rumors associated with Professor Rai given that she is a long-time friend of President Barack Obama, both having been in the same Harvard Law School class. What we do know is that Rai was a member of the Obama transition team, and was rumored to be on the short list for Undersecretary of Commerce for Intellectual Property, a position that also carries the title and responsibilities of Director of the Patent and Trademark Office. As practically everyone in the patent bar that came in contact with Professor Rai was kissing her ring in anticipation that she would become the new PTO Director, I heard an unsubstantiated rumor that she had been offered the position and declined. I want to make as clear as possible that I am writing about rumors, and unsubstantiated ones at that in order to distinguish from hard facts and inside information so that readers understand that this may all be much ado about nothing. Having said that, as well respected in academic circles as Professor Rai is, it would be an enormous mistake for her to be given a policy setting position within the USPTO. So allow me for a moment to buy into the rumors and make my case.
First, the thought that a long-time friend of President Obama’s would be given a policy directing position within the United States Patent and Trademark Office is at first glance not so unbelievable or even tragic. The trouble is that this would continue a disturbing pattern taken to new heights by President Obama, although employed by several other Presidents of recent vintage. The setting up of a shadow government with Czars is extremely disturbing, contrary to the spirit (and likely mandates) of the US Constitution and placing a close, personal friend into a policy making and/or setting position within the USPTO without Senate confirmation would be yet another in a long line of tragic mistakes that have us now with a government where day-to-day policy of agencies is being set by those who have not been questioned by the Senate.
Let’s get the 800 pound gorilla in the room out into the open, shall we? I know not a single member of the patent bar that believes that the claims and continuations rules were wise, within the power of the USPTO or in any way, shape or form likely to lead to a better patent system. Even Jon Dudas testified before Congress and explained that if the rules went into effect it would maybe impact 5,000 applications a year; of course leaving off the fact that those would be the most commercially relevant innovations. There is no other way to characterize the claims and continuations rules other than as a full out assault on the very innovation that the US Constitution wants to foster and encourage. Professor Rai supported those rules, advocated for them and this alone should disqualify her from any position within the Patent and Trademark Office.
Professor Rai is also on the record as supporting Patent Office rulemaking authority. Again, I do not know a single member of the patent bar that believes this is wise. Thankfully, I cannot name a single member of Congress that thinks it is wise either. In fact, Congress has been asked for years to grant the Patent Office rulemaking authority and has never done so. This Congressional inaction, whether by happenstance or because they understand how the Patent Office could easily and likely would abuse such power, has lead Professor Rai to urge the Patent Office to continue to use the courts to push the envelope and take substantive rulemaking as far as it can be taken without Congressional approval. Again, someone who takes the position that the Patent Office should use the courts to do what the Congress explicitly refuses to allow them to do should be disqualifying.
Professor Rai also advocates for inequitable conduct reform, but her position as disclosed by Patently-O is that there should be more on the record communications between Patent Examiners and Patent Attorneys or applicants. That is exactly 180 degrees in the wrong direction. We do not need more on the record, we need less on the record. Inequitable conduct is the single largest problem facing the US patent system, and we need to continue to make it harder to prove, rather than easier to prove. If the Patent Office wants better information then a frank, open and off the record discussion with the Patent Examiner is absolutely essential. The other solution would be for Congress to legislate Rule 56 and force the Federal Circuit to give deference to the Patent Office, which they simply refuse to do, but legislation has roughly between a 0.000% chance of happen to a 0.001% chance of happening. Supporting accelerated examination with all its ridiculous requirements and mandating on the record early interviews is simply ill-conceived, straight out a bad idea and shows a lack of understanding of what the Patent Office does on a daily basis. Again, this should be disqualifying.
Moreover, at a time when the patent bar is extremely optimistic about the direction the Patent Office is heading, it seems reckless to suggest that such a prominent position would be given to someone who the practicing patent bar is in such fundamental disagreement with on major issues that have divided the profession and industry for 5 years now. The entrance onto the scene by David Kappos, the return of Nick Godici in an advisory role, the progress made in day to day operations and fundamentally changing patent prosecution to make it more collaborative by Peggy Focarino, the naming of the highly respected Bob Stoll to be Commissioner and the retirement of John Doll were all extremely positive moves. Why then would such an obvious, glaring and unnecessarily antagonistic move be made to bring in Professor Rai? It should not be done and if it is done it would all but certainly jeopardize any cooperation between the Office and the industry.
Professor Rai is no doubt smart and she is no doubt a highly respect academic, but I don’t believe she is very respected or held in high regard by the industry or the profession. At a time when healing is needed, such an obvious move toward Chicago-style politics is unwise and unwarranted. Friends and cronies should not be put in position of authority, having direct access to the boss, only to report on or inform regarding day to day operations. What is tolerated in Chicago should not be tolerated in Washington, and certainly not tolerated with such an important aspect of the nation’s economy as our innovation policy. President Obama seems to have a growing reputation for micro-management, and we certainly do not need another politician micro-managing the Patent Office. That is what we had for the most of the Bush Administration, but never to the point where someone with such access to the White House was involved in forming political innovation policy. Micro-management by those with an agenda has brought us to the point where pendency is out of control, the backlog is out of control and that horror movie should not result in a sequel.
Join the Discussion
11 comments so far.
Gene QuinnSeptember 22, 2009 02:43 pm
Thanks Mark. I appreciate your comments. I hope I am wrong. Arti Rai is certainly bright and talented. If she does become a part of the USPTO I just hope that her talents will create a better patent system that will help industry rather than work against industry.
MarkSeptember 22, 2009 12:13 pm
The first paragraph of your response captures the point I was trying to make far better than I did.
While I may disagree with your objections to Prof. Rai, you have done a credible job of stating your concerns.
Gene QuinnSeptember 18, 2009 03:13 pm
Whether anyone likes it or not, racial politics have been thrust into the spotlight by the appointment of Sotomayor. She may be a great judge, but saying that a wise latina will more often than not make a better decision than a white male is absurd and stupid. While you may think Professor Rai to be capable of making better decisions than 99% of white males, statements like that are really not helpful and just further alienate. If she is the right person for the job, great. If she is not, then her gender and race should not matter. Diversity should not play a role in bringing in the best and brightest.
Professor Rai’s intelligence is not at issue. What is at issue is her beliefs and what she urges the patent system to become. As far as I know she has strong views that are exactly opposite of those in the industry who rely on patent protection to build and grow businesses. I believe, as do most in the industry, that the claims and continuations rules are ridiculous, were an awful mistake and would have severely damages US industry. To the extent she is being invited to the table to bring in an alternative view so as to allow for informed airing of opinions so that the best solution can be achieved then great. If her becoming a part of the USPTO signals that the Obama Administration is going to embrace, or that Congress will embrace failed policies that will harm biotech, pharma and independent inventors, that would be very bad.
Having a strong belief in the patent system is wonderful, but Kappos and Rai took dramatically different positions on the seminal issue of the last 5 years. Since she is a personal friend of the President, and will be accepting a position that previously was a PR position without any input into policy one has to wonder why, and what that means. Time will tell, but there is nothing wrong with questioning in open and polite conversation what may become.
EGSeptember 18, 2009 12:42 pm
I share Gene’s concern about Professor Rai, but not because she’s a minority (I happen to be half Jewish and 1/32 Cherokee). Nor am I suggesting she isn’t very intelligent, as she obviously is quite saavy about administrative law outside of the PTO. Instead, it has to do with her real “patent” experience, especially regarding the PTO, which in my view is sorely lacking. Having been subjected to two former Directors of the PTO (Rogan and then Dudas) who had absolutely no real “patent” experience, I’m very wary of seeing more folks appointed by any administration (not just Obama’s) to the PTO hierarchy who have no “real” experience that qualifies them for that appointment.
I’m also very skeptical of the ability of academics (which Professor Rai primarily is) to articulate policy in an organization, like the PTO, which is involved in the “pragmatic” business of managing U.S. patent prosecution. Most of what I’ve seen and experienced from those with primarily an academic background like Rai’s is that they’re long on “theory” and “philosophy,” but very short on “pragmatic” approaches. What the PTO needs right now are those with real “patent” experience, and “pragmatic” approaches. The new Director Kappos fits those requirements; conversely, Professor Rai does not.
Legal academics like Rai are definitely needed (I do enjoy sparing with them about case law trends) and do have an appropriate role to play in articulating how our patent system should work. But not in the PTO hiearchy, at least not now. In particular, Professor Rai’s support of the ill-conceived rule packages in the Tafas/GSK suit is glaring evidence to me of someone who doesn’t understand the “realities” of how the PTO operates or what is true authority is or should be.
MarkSeptember 18, 2009 09:14 am
I respectfully disagree with your position with respect to Arti Rai, Gene, and second that of John White. The President and Sec. Locke have assembled a strong team to run the USPTO. Adding Arti Rai to that mix would do nothing to diminish that team or substantively change its focus. One thing that Arti Rai and Dave Kappos share is a strong belief in our patent system and a firm understanding that it exists to serve a public interest and not just the interests of the the patent bar or patent applicants, an understanding that (in my admittedly jaded view) the patent bar seems all too often to forget.
I have to say I also find the comments from Just A Guy repugnant. Any one who knows Arti knows just how incredibly intelligent she is. She is imminently qualified to hold a senior position at the USPTO, and far more qualified than about 99% of the white males (a category into which I also fall) I know.
By the way, who did Arti advocate to run the USPTO? Dave Kappos
Just Another GuySeptember 12, 2009 04:02 pm
Just A Guy,
Diversity is necessary in government because wise minorities make better decisions than wise white men. At least so we’ve been told by one “wise” minority — and her apologists.
It’ll be interesting to see if this racial identity politics plays out in our government policy when developing nations press their claims that it’s just under a human rights rationale to suspend (or completely ignore) patent rights on pharmaceuticals and green technology. In short, if our minority policymakers are more “empathetic” to the needs of minorities (majorities in their own country) will that alleged insight be a factor when crafting US policy? If so, that needs to be made explicit. And if not, then what’s the rationale for the preference in hiring the minority? I’m not taking sides one way or the other. But ignoring the issue is why we’ve been unable to have an honest and open — and civil — debate on race in this country.
patent leatherSeptember 11, 2009 04:46 pm
Rai is not even a registered patent attorney. Most of the “academics” that supported those rules were not registered patent attorneys, and as such, couldn’t appreciate the problems those rules would cause. Of course, Doll and Dudas also fell in this category. Rai can’t have it both ways. She threw her towel in with the losers, now she can’t switch sides and expect the patent bar to embrace her. I don’t have the stellar credentials like Rai (although look what some have to say about both of Rai’s law schools: http://abovethelaw.com/2009/09/duke_the_douchiest_law_school.php), but after prosecuting patents for 10+ years, I think even I would be more qualified for any PTO position than she.
Just a GuySeptember 11, 2009 04:23 pm
It is also kind of interesting how the president seems to be hiring every minority under the son to fill his positions. I understand diversification, but I’m starting to suspect slight discrimination against white males attempting to obtain open positions.
AdamSeptember 11, 2009 02:02 pm
You’re right about one thing, appointing friends is just Illinois politics as usual, and has no place in Washington.
Gene QuinnSeptember 11, 2009 01:56 pm
I sure hope you putting the right spin on this. Not since Thomas Jefferson have we had anyone inside the Patent Office with such direct access to the President.
If Professor Rai turns out to be a staunch advocate of sensible reform, a strong Patent Office that follows the rule of law and does unnecessarily, arbitrarily and capriciously attack those inventions the Constitution intends to promote, then I will be the first to say I am wrong and write a mea culpa.
john whiteSeptember 11, 2009 01:29 pm
Well, Gene, you certainly put the issues on the table. In light of past history, I hope, if this rumor does prove to be true, that Professor Rai can, by working within the USPTO, develop a more complete understanding of mission and the best ways that mission can be carried forward. I repeat, what always bears repeating, the relationship between the U.S. Gov’t , U.S. citizens, the USPTO, and the Innovator who seeks confirmation of title to their contribution is not adversarial. The inventions for which patents are obtained – do not yet exist. The USPTO confirms this fact by examination, and only affirms what the inventor is representing to be true. Nothing, I repeat, nothing is being snatched from the people in the context of anything they otherwise had or would have had in the future. The patent system fosters an exchange, to wit: complete disclosure of an innovation in exchange for recognition of title for a limited time. Simple. The PTO monitors this exchange on behalf of the public who benefits from this exchange. The mission is to make this system work. Other government entities offer support: the courts, the statute writers, the appropriators. More patents = more innovation. We are all on the same side. The system, in its various component parts, needs repair. Go team. It may help that Professor Rai has the ear of those who can make policy decisions, and can speak in a language other than patent practitioner code.