4 More Years: Patent Consequences and Other Election Musings

You would have to be living under a rock not to know that President Barack Obama was reelected last night in what really can only be characterized as a resounding victory. While I went on the record endorsing Governor Mitt Romney, rather than feeling too bad, I at least have the reassurance that the U.S. patent system will remain in capable hands for the foreseeable future.

Even in my endorsement of Governor Romney I discussed that it is undeniable that the USPTO is run better now than at any time during the Bush Administration. So while the Republicans in the patent community are no doubt disappointed about the results of the election last night, the consolation prize is that the federal agency that handles matters in our little niche will be competently run moving forward.  So there is a silver lining.

Of course, there have been rumors flying around that David Kappos will not remain at the USPTO for long even if President Obama did win reelection. No one knows for sure what will happen, and frankly who could blame Kappos if he decided that 4 years was enough and he wants to return to the private sector.  Still, if and when Kappos would make a decision to return to the private sector I would be surprised. As far as I can see he remains the highly energetic, extremely motivated, dedicated servant of the patent system that he was when he first assumed the mantle of Director in August 2009.

Since Kappos hit the ground running at the USPTO his public image and behind the scenes persona has been a cross between a patent version of the Energizer bunny meets Data from Star Trek.  His work schedule is legendary, seemingly needing little or no sleep and substantively engaging in e-mail discussions with top staff and others late into the evening (11pm or later) and then back at it again while mere mortals are still waking up and fumbling for the coffee.  He also substantively engages in red-line editing Federal Register Notices, and at every encounter has facts, figures, statistics and background information at the ready. To say he is unique doesn’t capture the essence of the man. If ever there was a time for the redundancy “very unique” it is with respect to David Kappos.  He is indeed very one of a kind.

In addition to the USPTO remaining in the capable hands of Director Kappos for the foreseeable future, with the reelection of President Obama that means that there could be a real possibility that AIPLA Executive Director, Q. Todd Dickinson, will be on any short list for future appointments to the United States Court of Appeals for the Federal Circuit. While no one knows for sure, given the age of Judges on the Federal Circuit it would seem likely that President Obama will have an opportunity to appoint at several Judges to the Court, and given the Court’s workload they could and should be granted more Judgeships anyway.

It should come as no great surprise to readers of IPWatchdog.com, but I think Todd Dickinson would make an excellent appointment to the Federal Circuit. We need more patent people on the Court, and Dickinson’s diversity of experience within the patent industry would make him among the most well rounded choices for such a position. Having previously been appointed Under Secretary of Commerce and Director of the USPTO by President Clinton he is also on the right (or left as the case may be) side of the aisle to attract attention from a Democrat Administration in the White House. Of course, in the political climate of the day it might not do him any favors to have this Republican patent attorney suggest him for the position. Nevertheless, there would be great bipartisan support for Todd Dickinson to the Federal Circuit.  The results of the election last night make Dickinson to the CAFC certainly plausible.

 

Election Musings (And Why the Republicans Lost)

Not all Republicans lost last night, and the results of the election offer a real mixed bag. Who would have predicted that President Obama would win, the Democrats would gain in the Senate AND the Republicans would stay firm or perhaps wind up gaining a bit in the House? It seems to me that the results reflect a reality that many people are willing to split their vote, as is evidenced by the fact that Governor Romney was victorious in Indiana and Missouri but bad Republican (or Tea Party Republican) candidates for Senate were trounced.  It seems to me that the candidate matters more than party affiliation for many, particularly when there is a credible reason for people to believe a particular candidate is out of touch, whether on social issues or because they just don’t understand the struggles of everyday Americans.

Rather than go into any particular policy or issue, or to really over an excuse, I thought I might take a moment to write about what I observed on Election Day, which may offer an inside perspective that you might not get elsewhere.

I was a member of the Lawyers for Romney Team in Virginia. I was assigned 5 precincts in Dumfries, Virginia, to observe the election as an official representative of the Romney Campaign. My credentials were provided by the Republican Party of Prince William County.

Upon going to a location I would first seek out the Chief Election Officer and formally present my credentials, which were indeed in writing. I would then complete a form that explained the law in Virginia, including what I could and could not do. Upon completing this form I then would talk to the Republican Poll Watcher (or Watchers).  In Virginia Democrats and Republicans are each allowed to have up to 3 Poll Watchers per precinct.  I was then to observe for a few minutes and if everything was in order then move on to the next precinct.  This rotation lasted all day. If I observed anything out of the ordinary I was to report to the Lawyers for Romney HQ or directly to the Richmond, Virginia, Lawyers for Romney “war room,” as it was called.

Did I observe anything unusual? You bet!  There were extremely long lines at each of the precincts I was assigned.  The shortest wait of the day was 1 hour and 15 minutes, but that only lasted for a brief period at one precinct and then rose to 1 hours and 45 minutes or more.  The longest wait of the day I saw was upwards of 4 hours at the Potomac Middle School (PMS) in Dumfries, Virginia. That long line persisted throughout the entire day and into the late evening at PMS.

There has to be a better way to run elections than to expect that Americans will be willing to stand in extraordinarily long lines. We can and should solve this problem moving forward. There were 6 voting machines at PMS and the other precincts where I was, which produced a rather steady through-rate of about 170 voters an hour, at least at PMS. Double the number of machines would have meant significantly shorter lines and voters would have wrapped up shortly after the polls closed at 7pm rather than the last votes being cast approaching 11pm at PMS.

Was there anything else I observed that seemed unusual? Absolutely…

1. If the Obama ground game were considered “varsity football” the Republican ground game was akin to a pick-up flag football game. At only 1 of the precincts where I was assigned was there the 3 Republican Poll Watchers our side was allowed. At 1 precinct there was a single Republican Poll Watcher who without as much as a call to me or anyone vacated his position sometime early afternoon.  I learned of that when I returned to the location and the Democrat Poll Watcher told me the story and then apologized for the predicament this put me in.  In another location one of two Republican Poll Watchers left to get something to eat around lunch and never returned.
2. Seeing long lines and Republican volunteers leaving, I called in and asked if they could send help. No help arrived. This was particularly disturbing to me because I know at least 2 people who volunteered, one as Lawyer for Romney and another at a Republican Poll Watcher who were NEVER given assignments for election day.  As if the Republicans were well staffed.
3. Word of long lines at PMS went out to Democrats and as the end of the day approached dozens of Democrat “cheer leaders” arrived to implore people to continue to wait in the long lines. Pallet after pallet of free water was brought in, pizza was brought in, coffee, granola bars, chocolate, you name it was brought in and handed out freely to everyone in line to keep them in line. Even though they knew I was a Republican observer I was offered the same as everyone else. One guy kept telling people about how 537 people changed history in Florida in in the 2000 elections, and one particularly cheery woman kept telling everyone, particularly at the end of the line, just how much of a “great job” they were doing. No laws were being violated by this activity, and no campaigning was going on. Just Democrat volunteers and Obama campaign workers asking people to stay and vote. I heard no suggestion of how they should vote. It was by the book and frankly very uplifting.
4. The Democrats were extraordinarily organized at PMS, which is where I was told (based on my recommendations) that I should end the night and get locked in as an observer until the final votes were reported by the Chief Election Officer.  At the same time that dozens of Democrat volunteers were present there was me and one other Republican Poll Watcher observing voter check-in. Two Republicans to dozens of Democrats. Could we “observe” everything?  Hardly.  I went to the end of the line to watch for stragglers coming on line after the polls closed, but we had no one at the front door, or any other door at the school, and no cheerleaders or relief.
5. At other precincts in my assignment, Republican Poll Watchers wanted to leave ahead of the polls closing so that they didn’t have to stay until the end.  Under Virginia law credentialed non-voter observers, poll watchers and bystanders who are present at 7pm are required to stay until the very end. They didn’t want to get trapped, so I am told they planned to leave right before 7pm although voting at these precincts would go on for several hours. At the critical moments of the polls closing and then the votes being tallied there were no Republicans present except where I was at PMS.

These, among other reasons, suggest why President Obama won.  His supporters were far more dedicated than Governor Romney’s supporters.  Whatever the reason for that, the planning leading up to Election Day let dedicated supporters go without an assignment.  We were also all promised an assignment 7 to 10 days before election day, and received our assignment only over the weekend before the election.  So many dedicated supporters likely felt they were not needed.  That is the wrong message to send to those dedicated enough to go through training and seminar phone calls and dozens of e-mails.

What else did I experience?

Dumfries is a heavily Democrat area of Virginia. Given the highly partisan political bickering leading up to the election played out nightly on INSERT CABLE NEWS CHANNEL HERE, it was my belief that things could get tense particularly with long lines and the likelihood that people would start learning of some results while still in the crazy long lines in Virginia. What I encountered, however, were truly nice, pleasant and dedicated people. The Election Staff at PMS were friendly and not a single person treated me as an outsider despite knowing I was a representative of the Romney campaign.

It was also truly refreshing to see how our elections operate. A bunch of volunteers, whether Republican or Democrat or neutral Poll Workers. We all stayed there until past 1am this morning observing the vote tally and reconciliation process even though we knew that every news outlet had already projected President Obama as the winner. I arrived home approximately 2:45am and after unwinding went to bed around 4am.  It was an exhausting day.

While my guy lost last night it was exciting to be a part of the entire process. What I observed was a bunch of people all doing the right thing to the best of their abilities. While I worry about the fiscal cliff, sequestration, looming war in the Middle East, tax hikes and 23 million Americans unemployed, on November 6, 2012, everything I observed worked the way it is supposed to.  I suspect the Founding Fathers would have been proud.