Joff Wild

Oh dear, it seems as if I have upset Greg Aharonian, who publishes Internet Patent News, a daily email about patent developments in the US. Aharonian, a long-time critic of just about anything that moves in US patent circles, is particularly upset that I found a reason to praise USPTO director Jon Dudas in a recent blog. Because the News is a daily email only, I can’t provide a link to it, but I can give you a flavour of what it says.

“A patent journalist, Joff Wild, has written (for a fee?) a silly article titled "It's time to acknowledge Jon Dudas' major achievement", in the 21 March 2008 edition of IAM Magazine (not known for serious IP journalism),” Aharonian begins. “Wild's main praise of Dudas,” he continues, “is that because of Dudas' tremendous legislative skills, the PTO was able to get 100% of the user fees for the PTO's budgets. But can Dudas claim all of the credit? I mean, in recent years, many groups have been yelling at Congress to stop diverting PTO fees.”

First of all – just in case anyone had any doubts – I am not paid by the USPTO, or any other patent or trademark office anywhere in the world; never have been, never will be. For it to be otherwise would hopelessly compromise me. What is posted on the IAM blog is my opinion and my opinion only. Second of all, why not just say that you don’t agree with me Greg? Why bother with the false insinuation and the criticism of a publication you know nothing about? Does it really help you to get your message across? It’s your call, of course, but I am not sure that the tone works.

Anyway, back to the email. “It doesn't matter if the PTO gets 90% of the fees, 100% of the fees, or 110% of the fees, if PTO management wastes lots of the money it does get and mismanages the examiners,” Aharonian writes. “So whatever additional fees given to the PTO budgets that can be attributed to Dudas, such fees are more than offset by the waste, fraud, corruption and incompetence of Dudas' mismanagement. I would rather the PTO get 90% of the fees if they are well spent, as opposed to 100% of the fees with lots of waste.”

A similar point is made by Hal Wegner in a note sent out to his subscriber list, which again dealt with my post. As you would expect, Wegner has taken some time to read all of what I said and has considered it carefully. His conclusion: yes, Jon Dudas has been instrumental in ending diversion, but is that really the issue if the money the office is generating is not being wisely spent? Furthermore, because organisations such as the IPO and AIPLA put so much emphasis on ending diversion, now it has been achieved, they are left with little to say about why the USPTO may not be functioning properly. Maybe, concludes Wegner, the US not only needs a new administration in charge of the patent office, but it also needs new people in charge of its major IP organisations. Strong stuff indeed, made more powerful by the measured tones in which the whole note is written.

Now, as I say in every post I ever make about Jon Dudas, the Director of the USPTO has made mistakes – some of them very serious. However, it seems churlish not to acknowledge what has to be a significant achievement. The IP bar in the US was calling for an end to diversion long before 2004, as were Dudas’s predecessors at the USPTO, but it only happened during Dudas’s tenure. Maybe I am wrong, but I do not think it is a coincidence that Dudas is a Washington insider who knows how the system works and can operate skilfully within it. As diversion was such a big issue and Dudas has seen it end on his watch, what is wrong with giving him praise for that? At the very least, he has set up a situation in which the person who succeeds him will have the freedom to make choices without having to worry about monetary constraints.

It is also worth remembering that not everyone in the US is highly critical of all aspects of Dudas’s time at the USPTO. The members of the PPAC – whom Aharonian will undoubtedly dismiss as government patsies (and whom, I would wager, Wegner is not too keen on either) – issued a report last year which praised the USPTO for the work it was doing and put at least some of the blame for its problems on users of the office. To my mind, it was a report that raised some very important issues and it was put together by people who are steeped in patent law and practice, and cannot be dismissed as lightweights.

As a journalist, my job is to provide some balance now and again. The relationship between Jon Dudas and the US patent bar is terrible and I have made that clear. But I have also made clear that not everyone damns the director of the USPTO and not everything that has happened during his time at the office has been an unmitigated disaster. I will not apologise for that, because –as far as I can see – that is the truth of the matter.

Finally, it is good to know that so many people read the blog these days and care enough about what it says to comment on it. Long may this continue!