Thursday, June 18, 2009

It's Kappos

White House press release on June 18:

WASHINGTON, DC – Today, President Barack Obama announced his intent to nominate the following individuals for key administration posts: David J. Kappos, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office and Warren F. "Pete" Miller, Jr., Director, Office of Civilian Radioactive Waste Management, Department of Energy.

EETimes reported:

Early reactions support President Barack Obama's choice of David Kappos, the assistant general counsel for intellectual property law at IBM Corp., as the new head of the U.S. patent office. Kappos would take the post at a time when a three-year drive for patent reform is currently being hotly debated and the patent office is swamped by a historic backlog of applications.
"The PTO is in crisis, and I think Dave Kappos understands that, and will work creatively to try to find ways out of the crisis," said Mark A. Lemley, a professor at the Stanford Law School whose name was also listed as one the Obama administration may have considered for the job. "I also think he is sensitive to the need for patent reform, which is a good thing," he added.

EETimes also wrote: Kappos' opinions, as articulated in the testimony, generally follow the line of the Coalition on Patent Fairness, a lobbying group backed by companies including Cisco Systems, Hewlett-Packard and Intel. However, even opposing groups such as the Innovation Alliance have issued positive statements about the Kappos nomination. IPBiz notes that IBM is NOT a member of the Coalition.

Innovation Alliance wrote:

We congratulate Mr. Kappos on his nomination. We look forward to working with him in what will be a very difficult, but important effort to revitalize the PTO, which all agree is under funded and overburdened.

Innovation Alliance members believe that to best promote innovation, Congress should provide PTO the funds it needs to upgrade its technology, improve the patent application process, and attract and retain professional talent.

We are eager to work with Mr. Kappos, the Administration and Congress in achieving these goals, and making sure that our nation's strong patent protections continue to work for all sectors of the U.S. economy. We urge the Senate to move forward with a speedy confirmation.

See also:

**Note Kappos made a $500 donation to American Intellectual Property Law Association Intellectual Property Pac in 2007.

**InventorsDigest gives some background on Kappos:

Kappos received his bachelor’s degree in electrical and computer engineering from the University of California-Davis in 1983, and his law degree from the University of California Berkeley in 1990. He joined IBM in 1983 as a development engineer and has served in a variety of roles before taking his current position, including intellectual property law attorney in IBM’s Storage Division and Litigation group, IP Law Counsel in IBM’s Software Group, assistant general counsel for IBM Asia/Pacific, IBM Corporate Counsel and assistant general counsel.

**Needless to say, the Kappos "intent to nominate" was not praised at the PatentHawk blog

**The IAM blog gave a fuzzy overview of possible issues with Kappos' past discussions of "patent quality" ==>

Over recent years, Kappos has been very keen to talk about patent quality and what he believes is the decine in the standard of rights being granted by the USPTO. However, what he has been less willing to talk about is the role companies such as IBM may have had in this process, if it really is taking place. Year in and year out under Kappos's leadership, Big Blue has received more US patent grants than any other company. Is it possible that if the company, and many others like it, had been more selective in what it sought protection for, examiners at the office would have had more time to do their jobs and so more opportunity to weed out dubious applications? Indeed, Kappos's big business, Big Blue background may disturb some who will see him as an insider with a very particular agenda. And it is certainy true that he is going to have to learn that there are numerous stakeholders in the US and international IP system - not all of whom view rights in the way that IBM does.

Joff Wild could have been more specific about IBM's "airplane toilet queue" and "outsourcing method" applications. Even Jon Dudas was including the first queue patent in his talks, although he did not identify IBM by name. The patent reforming IP profs talk about the "method of swinging on a swing" patent (now gone and a gimmick in the first place by a patent attorney father) much more than about some of IBM's questionable applications, which are not gimmicks. IBM's posture on the queue and outsourcing matters, when they were exposed, was like that of a child caught with a hand in the cookie jar. IBM's strategy on patents is basically to obtain a lot of "little" (likely incremental) patents, and to threaten a potential infringer with a wall of patents, rather than with one, or a few, killers. In this, patents are not engines of innovation, but of gradualism. Patents as a defense of the past rather than pathway to the future. If, purely hypothetically, Kappos carried that vision to the USPTO, any changes as to "patent quality" would be more superficial than substantive.

***As an aside, there seems to be an underlying belief that "who" is director of the agency can really make a difference.
At some level, "who" may matter, but it IS a government agency, which to some extent has some inertia of its own.
On the topic of government agencies, from yahoo finance :

In 1883, Dr. William Howey went to check on crews building the Canadian Pacific Railway. While searching for a lost worker, he found some interesting copper-colored rocks and pocketed them. Upon returning home he sent them to the director of the Geological Survey of Canada. The verdict? The stones were deemed worthless, and Howey threw them away.

A contractor picked them up, and a year later decided to check out the site where they were found. It turned out those "rocks" were copper and the contractor - Thomas Murray - had discovered one of the world's largest copper deposit, producing millions of dollars of ore. When it was discovered the ore contained high levels of highly sought-after nickel, the deposit was named the International Nickel Company of Canada, and went on to become the second-largest producer of nickel worldwide. In 2006, Vale (NYSE: VALE) (previously CVRD) bought the company (named INCO) for $17 billion. Talk about a rock-solid investment!

***In passing, on odd patents that have recently issued, note US 7,536,731, titled
Head covering and insignia display assembly, with first claim

A head covering and insignia display assembly comprising: a primary member structured to be disposed in an operative position on a user's head, said primary member comprising a unitary, one piece construction of a single, foldable, weather resistant material dimensioned to facilitate storage and transport of said primary member when in a folded orientation, said primary member structured to comprise a sports helmet configuration, said primary member further comprising an insignia display portion integrated into said primary member and defined by at least a portion of an outer surface thereof, and at least one primary insignia affixed onto said insignia display portion.

The issue is along the lines: baseball fans get to wear baseball caps, but football fans don't get to wear football helmets:

Among the reasons for this inconsistency in fan apparel is the fact that the rigid helmets worn by football players, hockey players, as well as certain other athletes, are not readily stored and transported to and from sporting events in the manner of the common baseball cap, which may be readily folded up and placed in the user's pocket. Further, with security concerns such as they are in today's society, facilities hosting such sporting events are not likely to condone massive numbers of fans donning protective head gear in their facility.

Among the products developed in an attempt to fill this void in a football fan's ability to emulate their favorite player and/or show support for their favorite team, is an oversized novelty football helmet constructed of a partially rigid foam material or having an inflatable configuration, and which may or may not include a face mask portion to further the effect.

The listed firm for the issued patent is Malloy & Malloy, P.A.


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