Sunday, October 25, 2009

Kappos on the USPTO: "the nose of this airplane is pointed down"

At the Association of Corporate Counsel's annual meeting, David Kappos did NOT exude near-term confidence for the USPTO. As quoted in the National Law Journal:

"the nose of this airplane is pointed down" (...)

"Under the current environment, we're not going to make significant progress. We're not going to get anywhere near 10 months."

The meeting highlighted differences between USPTO management and the USPTO examiners. In contrast to Kappos and Artie Rai, POPA head Budens believes Congress, not USPTO management, should make substantive patent policy changes. Further, Budens supports certain searches to be done within the USPTO, in contrast to points within the Patent Prosecution Highway program.

Kappos, just like his Republican predecessor Jon Dudas (UChicago Law, '93) , was pushing post-grant review ("opposition"), a procedure opposed by many patent attorneys, including Joe Hosteny:

[Kappos] said the bill's proposal for a patent office process to review patents after they're granted would give the business community a meaningful alternative to a court battle when facing patent infringement suits.

"If we get it right in the legislation, we can get post-grant review out of the USPTO in a year or less," Kappos said. "Even if you've already been sued, we'll get it done so quickly, we'll beat the district court by a country mile."

As the song says, I like dreamin'. The USPTO can't get prosecution or re-examination done in timely fashion right now, and the USPTO promises to beat "rocket dockets" while implementing a new procedure?

Or, from a different song:

And history ain't changed
'Cause the banners, they all flown in the last war

We don't get fooled again
Don't get fooled again

Meet the new boss
Same as the old boss


Blogger MaxDrei said...

Dreaming is what it is, but one can see how post-issue validity proceedings could be the solution. Go to registration only, and decide post-issue validity on the preponderance standard, but retain the Presumption of Validity. The PTO could do a great job of deciding validity, in the context of disputed, inter Partes proceedings, post-issue. But could it be done in a year? Again, I think so. The English High Court does it that quickly, utterly routinely, with discovery, expert reports, cross-examination, full trial. If London can do it, why not also DC?

12:49 AM  

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