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Robert J. Sayre
Robert J. Sayre
Cambridge, MA,
United States

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Changes are coming to the USPTO--meet incoming Director David Kappos


by Robert J. Sayre

David Kappos was confirmed yesterday by the United States States Senate as the next Director of the United States Patent and Trademark Office.  Kappos is an electrical and computer engineer, and he has been serving as vice president and assistant general counsel for intellectual property at IBM.

What does this mean for you and your patent applications?  It means change is coming.  Specifically, I believe we can expect to see improved relations between the USPTO and applicants; I believe we can expect to see improvements in the efficiency of USPTO operations; and I believe we can expect to see improved use and sharing of information at the USPTO.

While concerns existed as to whether Kappos's perspective and values would be irrevocably bound to those of his employer, IBM.  Like all parties, IBM has its own objectives with respect to influencing patent policty to serve its interests.  Nothing wrong with that.  But could Kappos also be a champion for other groups, such as universities and independent inventors?

In a confirmation hearing before the Senate Judiciary Committee on July 22, 2009, Kappos spoke passionately about his commitment to representing and balancing the interests of all users, USPTO employees and the public interest alike.  The following extract, which I believe is worth watching, is from his initial statement:

And here is the text of that statement:

I am mindful that the USPTO serves the interests of ALL innovators in this country, small and large, corporate and independent, academic and applied, and -- most importantly -- the public interest. While I have spent my career to date at a large corporate enterprise, I am familiar with the concerns and issues of all USPTO constituents - including small and independent inventors, the venture and start-upcommunity, public interest groups, the patent bar and many others - and will reach out to all of them.

I am mindful of the incredible dedication of the thousands ofUSPTO employees, and the essential role they play to the success of the US innovation system. I will work every daywith the USPTO employees and the unions that represent them to establish strong, positive relationships grounded in professional treatment for these workers producing work product based on professional judgment.

Another highlight of the hearing was when David Kappos responded to a question from Senator Klobuchar of Minnesota asking how to improve efficiency and morale at the USPTO.  Here is Kappos's response:

Kappos's pledge to "completely remake the count system" for measuring Examiner production at the USPTO is very important because, as Kappos indicates, "it results in disfunctional behavior."  Specifically, the current count system can reward examiners for issuing first-Action rejections before ultimately allowing claims.  To be clear, many applications are not entitled to first-Action allowances, but invariably, in any context, if you establish odd metrics to measure performance, many humans will shift their behavior to adapt to and thrive within those metrics.

What will the new "count system" look like?  I could only speculate at this point (comments are welcome), though I plan to update this blog as we learn more.

Finally, I look forward to Kappos implementing some of what he learned at IBM to advance the sharing of information by the USPTO.  The USPTO has made some great strides in recent years--most notably with the success of its electronic filing system and, more recently, with the introduction of its e-Office Action program, which moves to an electronic system for outgoing Office correspondence.  Modern Times Legal was a pilot participant in the roll-out of the e-Office Action program, and the feedback that I provided to the USPTO was very positive.

On the other hand, for example, you still cannot download PDF copies of US patents from the USPTO website and you must instead rely on third parties, such as Google patents and Boliven.  Particularly because a principal purpose of the patent system is to disseminate knowledge, there are ample and worthy opportunities for improvement on this front.

I will aim to keep you posted on new ideas for taking advantage of the resulting changes to US patent practice in the years ahead.

The full video of the hearing before the Senate Judiciary Committee is available on the Senate Judiciary Committee website.


I'd like to see the PTO bring back Official Draftsmen and an adherence to the proper drawing rules - the quality (or lack thereof) of drawings being allowed is appalling ! I've seen published patents with hand sketched figures and handwritten text, obviously done in pencil. Standards for quality and uniformity are at an all time low. I've been drawing patent illustrations for over 27 years and I'm tired of being asked to "let things slide" that we never would have let go even 5 years ago.
Posted @ Monday, August 10, 2009 4:12 PM by Cathy Spinney
Good point. I hadn't thought about the absence of USPTO enforcement in drawing standards as a component of patent quality issues. I think many of the complaints about patent quality are contrived and misplaced, though you are right. I think many attorneys were caught by surprise when the USPTO largely stopped objecting to drawings, so you could now longer just wait for the objection to docket replacement drawings because no objection would be raised. Now, seeing US patents issue with sloppy handwritten sketches for drawings just adds fuel to the fire in terms of the impression that the USPTO is issuing garbage. Thanks for your comment.
Posted @ Monday, August 10, 2009 7:10 PM by Bob Sayre
It is interesting to me that two comments to this posting of yours are from patent illustrators. I too am appalled at the issued cases I have seen with poorly sketched drawings. If I was an attorney instead of illustrator, I would be embarassed to have my name associated with those patents. I can only imagine having to stand before a judge to argue the validity of my patent and then point to junk drawings as an example of the quality work. Frightening.
Posted @ Thursday, December 10, 2009 11:13 PM by Ken Hoekema
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