Bob Stoll Part 2 – Innovation, Economy, Patent Examination

On July 19, 2012, I interviewed Bob Stoll, former Commissioner for Patents of the United States Patent and Trademark Office.  The interview took place in a conference room at Drinker Biddleon K Street in Washington, D.C.  After 29 years working for the USPTO and a total of 34 years working for the government, Stoll retired on December 31, 2011.  He then started his new, second career as a private citizen and all around patent specialist at Drinker Biddle in the firm’s Intellectual Property Group.

In part 1 of my interview with Stoll we discussed his adjusting to life in the private sector, the fact that he doesn’t enjoy the billable hour part of private practice (just like every other attorney I know) and we discussed politics a bit, as well as the U.S. economy and innovation policy.  Part 2 of my interview, which appears below, picks up where we left off discussing Presidential politics and the buzz that engulfs D.C. every 4 years.  We then move on to talk about how innovation drives the U.S. economy and I get his thoughts on why we haven’t seen a great new technology that has spawned an entirely new industry as we have coming out of so many recessions in the past. We then finish part 2 discussing changes to the patent examination process and how to streamline the examination process.

QUINN: I mean, this is a fun and interesting time for a lot of reasons. Maybe just one more question down this path. Being right here on K Street in D.C., at this point in time where probably everybody, Republican and Democrat alike would both agree — this is an incredibly important election. How fun is that for you?

STOLL: It’s scary for me. It’s important. I hope it comes out the way I want it to come out. I mean —

QUINN: No, no, I know, but what I’m saying — you strike me as a real observer, somebody who likes the debate, someone that likes the discussion and you’re in the city where right now it’s just a buzz, no matter who you talk to.

STOLL: Right.

QUINN: That’s got to be an exciting time for you.

STOLL: It is exciting. I stay up to date on the issues of the day– I mean, it’s almost ridiculous on how much I’m staying up to date on every back and forth, and folks don’t seem to be focusing as much as they should on the economy and jobs at the moment–

QUINN: It’s all appetizers right now but it is, you know, it kind of makes you —

STOLL: It’s exciting.

QUINN: It kind of makes you wonder though on some level whether either of these guys really want to win because one week Obama is having a bad week, another week Romney’s having a bad week.

STOLL: Gene, I think both of them want to win. —

QUINN: I understand that, but what I mean is you look at what the campaigns say and do somethings and you’re just like “how could they — how could anybody on the campaign team have thought that was a good idea?” At the moment now it’s the tax issue and there’s been issues with Obama, particularly that one thing he said in his speech about small businesses —

STOLL: That was taken out of context.

QUINN: Well, he actually did literally say the quote which, you know —

STOLL: Agreed. But it was taken out of context.

QUINN: I understand what people think he was trying to say.

STOLL: Yes.

QUINN: But —

STOLL: It’s a game at this point and it’s not one that’s helping the discussion. And I don’t think that part of it is good. I think genuine ideas should be put on the table with respect to that.

QUINN: I agree with you there.

STOLL: But I am reading everything I can about it.

QUINN: Oh, I am as well. And, you know, at the end of the day I think, you know, if we could both get in a room and had any kind of decision we’d probably come with, you know, within a degree or two of one another.

STOLL: Yes.

QUINN: It’s a shame that the government can’t do that.

STOLL: Yeah, I agree.

QUINN: Well, let me ask you this, sort of on a broader economic level, and see if you have any thoughts you’d like to share. I suspect you probably do.

I look back at this recession, the great recession, whatever you want to call it, and it’s been so long and slow to get out of, it’s starting to have that feel like the Great Depression. Not that it was maybe not as bad as the Great Depression but that it was, 10, 15, 20 years to get back to where we really ought to be. I don’t see innovation driving the bus the same way as it has in every other recession or the aftermath of a recession since the Great Depression. I’m trying to think what is the great new technology from this recession? Because there should be one. There should be something. We’re making great advances with the wind and green technologies, but those are not ready to drive an economy yet. Computers are getting better and stronger. We’ve had the iPhone and the smartphone wars, but they’re not driving the economy the same way that the Internet did. You look at the Clinton years; it was the Internet that drove an entire decade. Why is that? Why aren’t we seeing break-out technologies that drive a new economy?

STOLL: Well, I think that, first of all, we don’t know exactly where the fruits of this recession will actually appear. There is research going on in a lot of different areas and I think that,, it takes time to have what, , a breakthrough patent come out in an area that is brand new and drive an entire industry like some of the ones you’ve mentioned before. I believe that much could be driving this economy through infrastructure improvement. This may be — the way to come out of this one may be a little different than the way to come out of the others. We’ve got roads that are crumbling, bridges that are crumbling. We’ve got problems with respect to our sewer systems in Washington and I’m sure in every city which is 100 years old and they need repair and, there’s a lot of things that I think we could do which would then drive innovation in a particular area as well. Improvements related to energy and the environment could also lead the way–

QUINN: Well, the grid. I mean, if we had taken —

STOLL: Perfect example.

QUINN: If we had taken the stimulus money and said we’re going to put people to work and we’re gonna revolutionize our electric grid.

STOLL: Well, and maybe environmental improvements so we don’t have another spill of oil again.

QUINN: Yes.

STOLL: And the needs of the people today one of the driving factors of advancement. For example, better batteries. , something as simple as that, batteries that don’t recharge as much. And the cars that are going forward now that are more energy efficient and green tech oriented, I think you’re gonna — you’re keep seeing things move in that direction. Breakthroughs on diabetes and on AIDS would also be areas. Breakthroughs on cancer where a lot of research is happening. I think you’re gonna see more technological solutions to problems..

QUINN: I think we will and I’m gonna throw two thoughts out at you and see if maybe you want to react. One is that obviously the Patent Office over much of the time leading up to the start of this recession had let the backlog get too big. Now since Dave is in and you were there and you were really — and I know you were instrumental in driving —

STOLL: Thank you.

QUINN: — down — you were in charge of driving down pendency and getting the old stuff out and really pushing things through.

STOLL: Yes.

QUINN: I know that and the people in the loop know it but, you were a driving force. Thank you for that. Kudos to you.

STOLL: Thank my team. I mean, we did start looking at some of the older cases and didn’t understand why they were pending there for so long and they fell through the cracks and none of the reports were picking up a lot of them so I made people look at reports from 20 different ways and we found thousands of old cases that were just fallen through.

QUINN: And that’s actually why the average time the first action went —

STOLL: That is because it’s measured based upon the actions that you’re undertaking.

QUINN: Yes.

STOLL: Not what’s sitting in your queue.

QUINN: Right.

STOLL: And so it was against my interest to do it but it was the right thing to do —

QUINN: Right. It was.

STOLL: — It was important to get the applications out. And finally we started working up and getting rid of them and then the people I worked with and I got together and figured out ways of continuing to remove older cases so that we could get to a reasonable backlog, maybe by 2015, 10 months to first action pendency and it was a big goal of ours. But it doesn’t have to happen for all cases. I think it has to happen for those that are important to anybody.

QUINN: Right.

STOLL: Applications that are important either to the applicant or a competitor should be moved quicker. So I think that,, some can take time and some shouldn’t take time and we moved forward with track one, which allows folks to accelerate and there’s many different acceleration procedures and I think they’re soon gonna come out with a track three that allows you to park your application for 30 months and make a determination as to whether you want to pursue it as long as you disclose and a competitor can move to have it examined —

QUINN: Quicker.

STOLL: — quicker. —

QUINN: Yes, I think that all that stuff is good and I think that since the Patent Office is speeding up and those things that people are really interested in and can get out, I think that maybe we will start to see. The other thing that I wonder is because we see a lot of this incremental advances and I also — I’m really, really worried and what I’ve been calling lately is the patent infringer lobby and it seems to me that just across the spectrum there is more interest in just keeping your head down, maybe not affirmatively trying to willfully infringe but just taking the position that I don’t care, I’m gonna do this, I’m gonna go through and I’m not necessarily gonna take the next step to figure out what other people are doing and try and innovate around them. And that to me seems like a fundamental problem when there’s so many people that seem to be doing that.

STOLL: Well, Gene, I think it’s a mistake to lump everybody together because I think some are doing that and I will acknowledge there are people who just don’t look up and decide to plow ahead and take the risk, and they are taking a risk, but I think there are a lot of very innovative companies out there who do analyze competitors —

QUINN: Oh no, and don’t get me wrong, I’m not trying to like —

STOLL: Companies do invent around patents and I’m seeing a lot of that now. I also see a lot of companies selling off the patents that are not core to their business.

QUINN: Right.

STOLL: Some companies sell them off completely and hope to monetize them. I also see industries licensing competitors in order to reap some benefits that way and avoid costly suits so everybody’s using patents differently.

QUINN: Yes, let me try a different tactic because that was certainly fair and I didn’t mean to sound like I’m trying to lump everybody together but do you sense that there’s more of a problem with that now than there has been in the past or is it maybe just some of the biggest players seem to be engaging in that and that’s where the media is gravitating towards and you see these things play out on the blogs and —

STOLL: I think the problem is improvidently granted patents. I think when you’ve got a patent that’s too vague and too broad and the examiners did not have the time or resources to undertake a proper examination that’s where you get into problems. Now I’m gonna say that I think it’s a split responsibility. The applicants need to file decent applications with detailed explanations that really point out their inventions and not try to obviscate and blur what they’re actually claiming. The examiner needs to go out and make sure that the applicant is doing that and the examiner needs to find the best prior art and apply it properly. Those two things done together, a lot of these problems would go away.

QUINN: Right.

STOLL: And I really think it goes back to the basic filing and the basic examination and we wouldn’t have all of this litigation going on that we currently do.

QUINN: Yes. And it also strikes me as odd, I mean, you know, and maybe I see a non-representative set of things, you know, with IPWatchdog being out there sometimes I get — not sometimes — with regularity I’ll get e-mails from people saying, hey, I have an invention, it’s an innovation, I have my patent on file, can’t get the patent and I don’t understand what’s going on. Could you take a look? And there seems to an aversion to actually engage the examiner and, I mean, and I get it. I get that during litigation anything you do or say can and will be held against you, but at the end of the day there’s no litigation to be had if you don’t get the patent.

STOLL: But Gene, I actually think that there’s more willingness now, at least on the Office’s side, and I’m seeing it from the practicing attorneys, to call the examiner up and see if they can’t find a way to work through the problems. I actually think that the institution of this pre-first Office action interview is a phenomenal thing.

QUINN: I do too.

STOLL: It establishes a relationship between the applicant and the examiner and it really lets them get to a meeting of the minds quicker so that they understand each other’s position. I think it’s fantastic. I really believe — let me underline this — I think that most of the problems with our patent system really do flow from poorly drafted, unclear applications, poor examinations of those unclear applications so that combination, improving the tools, improving the examination, improving the application as it comes down — that would fix the system.

QUINN: Yes, I agree with that. We talk to the examiner. I can’t say in every case. Every case I’m involved in we talk to the examiner and we’ve had —

STOLL: I think that’s great.

QUINN: — We’ve had luck with the first interview program before action and we’ve had luck now with the pilot and I really hope that that becomes permanent where the pilot where after final, you know, you’ve gotten so close that do we need to file the RCE? No.

STOLL: I don’t even see how it couldn’t be made permanent and I think it might be expanded in some cases.

QUINN: Well, I hope so. At times the examiner hasn’t wanted to do that and, you know, it’s fair. We always call up in advance and ask whether the examiner would be willing because you never want to assume.

STOLL: No.

QUINN: You never want to file something only to have it kicked back and then you wind up the dates are in play and so forth. And in the cases where the examiners have said they are willing, we are almost there and wind up getting a patent in those cases.

STOLL: And I think the discussions between the examiner and the applicant before the first office action is a brilliant procedure. I think it’s really good. I think the after final program is great too and I hope the examiners aren’t avoiding an agreement on the claims after final so they can get more counts without doing more work.

QUINN: Yes.

STOLL: I don’t think most examiners would do that.

QUINN: No. I don’t think so. The ones that we’ve seen so far — I think there’s been some that were kind of close to the line and I thought maybe they would do it but it could have gone either way and they said no. And then there were some cases that we thought, you know, we are a word or two and they say yeah, sure, let’s do it.

STOLL: Yeah. And I think that’s great. And then when you’re way too far they can’t.

QUINN: Right.

STOLL: I mean, I —

QUINN: And if it’s gonna require an additional search, if you’re not really just talking about the same language that somewhere it’s already being considered but I think that’s a big improvement. I also wonder though — I think it maybe isn’t quite as simple as you say, just good applications and the good examinations. I think that’s for sure, but we also seem to be in this golden era of interest in patents, both from the Supreme Court and the CAFC. Maybe the overall number of cases isn’t growing as much as it seems, but I think the number of really important cases that those Courts decide, cases that have widespread ramifications that touch through a number of different areas, have grown.

STOLL: I think that the number of CAFC cases are growing and I think with these new post-grant and inter-parties review procedures they’re gonna grow even more and I think the CAFC is gonna need significant help and a pump up in resources in order to handle that increases —

QUINN: More judges?

STOLL: More judges, more attorneys. I think they are gonna be buried under an avalanche of cases in the near future. I mean, the examination, the core is picking up, what, 1200, 1500 right there?

QUINN: Yes.

STOLL: It’s going to increase the number of applications being examined. The post-grant and the inter-parties review are immediately appealable to the CAFC. They’re gonna need resources. So I think that you’re gonna see not only more important cases coming out but more cases and a backlog start building up. I actually think some of the interest in having the Supreme Court engage in so many of these patent cases, which they’ve never done to this extent before, the media being filled with patent issues all flow from the fact that the examination and the filing have not been exactly what they should have been. I think that there’s a concern with the quality of some of these patents out there in how they’re being used and I think if we had better quality patents the system would work better. I highly respect the examiners and the management at the Patent and Trademark Office, they are doing the best that they can with the resources and the backlog they’ve got and I understand the attorneys are trying to put these cases competitively into the queue and into economy — as quickly and as economically as they can to make their money. I just think the system should be improved so that both are given a little bit more time to be able to do a better job in prosecuting the applications.

PART 3 PREVIEW — In the final installment of my interview with Bob Stoll we discuss the recent Supreme Court interest in patentable subject matter cases, inequitable conduct post- Therasense, and who might be in line for appointment to the Court of Appeals for the Federal Circuit.