The solution to the US's patent problems are international, says former USPTO chief 21 Feb 09
“There was never a country that I went to that the USPTO did not have something to learn from,” says Jon Dudas of his time as the office’s Director. It quickly became pretty obvious when I interviewed him last week that after six years in charge - with all the worldwide travel and meetings with senior officials from other patent offers which this entailed - Dudas is convinced that many of the challenges the US faces over patent pendency and quality, for example, are only going to be fully solved through concerted international action. “There are a lot of important issues for us to deal with concerning US law,” he says, “but business and innovation are international. It has become increasingly clear that offices all over the world face the same broad problems in getting fee structures right, deciding what requirements should be placed on applicants and dealing with the backlog. So the best way to tackle them is to work together to find solutions.”
The good news, Dudas believes, is that there is now an acceptance at major offices that concrete action has to be taken or else the international patent system risks being not fit for purpose. He cites the Patent Prosecution Highway agreements that the USPTO has reached with a number of other offices as examples of practical steps being taken to deal with the prevention of duplication and improving quality. “We are seeing actual sharing of work and analysis of that work. This is a real difference from several years ago. There have been very positive results so far, with times to first office actions being dramatically reduced,” he says.
Of course, patent office bosses have been talking about co-operation for years now, without anything very much happening – a point that the AIPLA’s executive director Todd Dickinson made very eloquently last year a Trilateral Users meeting in The Hague. Frequently what was said in public about working together to solve problems gave way in private to concerns that, say, standards at the USPTO were not high enough or that the Europeans couldn’t make decisions because of the way the EPO is structured. But Dudas insists that this time it is different. “Five years ago I agree that things looked pretty much as they did 25 years ago, but there has been a dramatic shift since then. The world is poised: there is a real sense that we need to co-operate and the opportunities to do it are in place,” he claims. “There are governmental concerns about issues such as sovereignty, but there is an easy solution to these: we should share work to the maximum extent possible.”
This is not just a case of the Trilateral Authorities – the USPTO, the JPO and the EPO – getting together to find solutions to problems. Times are changing, Dudas explains. “For 25 years or so the Trilaterals accounted for over 85% of the world’s patent applications and grants. But that figure has come down to around 55% now,” he says. Both the Chinese State Intellectual Property Office (SIPO) and the Korean IP Office (KIPO) have larger annual workloads than the EPO, Dudas observes; and both are only going to get bigger. The five offices meet regularly and put timelines on specific projects designed to streamline the international system. “These might range from several years to quarterly, but this is the first time such commitments have been made in public. It shows how seriously everyone is taking this,” Dudas states.
Another crucial development, Dudas believes, is the appointment of Francis Gurry as the new Director-General of WIPO. “I know that it was a close run thing, but I was hugely encouraged that despite this everyone accepted the result,” he says (not mentioning the fuss the Brazilians kicked up after the vote took place). The fact that Gurry is an experienced IP man with a track record of achievement is very important, Dudas explains. “I have great faith in him. Under his leadership I think that WIPO is ready to move forward again,” he says. And this will be very good news for the Patent Co-operation Treaty, especially as Dudas claims that under his leadership the USPTO began to take it a lot more seriously. “PCT timelines had been largely ignored at the office, but that has changed. A couple of years ago only 2% of PCT applications we handled were dealt with on time, now that figure is up to 60% and I believe that by year end it will be 95%. It was expensive to do, but we managed to bring about real change,” he says.
So there you have it. Those who may have wanted Jon Dudas to have regrets about his six years in charge of the USPTO or to apologise for mistakes he may have made will be sorely disappointed. The man is relentlessly positive and is pretty clear that if he did make mistakes while Director they are greatly outnumbered by the strides the office took forward. It is always worth remembering that Dudas was in charge at a time when international patenting activity exploded and patents became a hot political and business issue. These developments, plus the emergence of the blogosphere, meant that the scrutiny he faced was greater than that experienced by any of his predecessors. His successors will be in the same boat that he was. At a minimum, my guess is that all will need the thick skin Dudas developed when it came to facing intense, sometimes vitriolic, criticisms – especially when they challenge the established ways of doing things that USPTO users have grown up with and done well from.
I will leave it to others to decide whether Dudas got it right domestically, but I am pretty certain that his views on the internationalisation of the patent system are absolutely correct. To paraphrase John Donne, no patent office is an island entire of itself. People who think that the USPTO can solve its problems alone are, quite simply, wrong. Instead, the office has to be a leader - along with the likes of the JPO, the EPO, SIPO and the KIPO – in developing solutions to issues such as the backlog that work across borders. Users, too, will have their part to play. Remember that these days both the USPTO and the EPO get more applications from outside their home territories than from inside. This is before China and the rest of Asia outside of Japan and Korea have really started to work through the potential that patents offer.
More than anything else, what we need today is strong international leadership from people unafraid to make unpopular decisions. With backlogs mounting and, despite the economic slowdown, probably only going to get longer in the medium term if nothing is done, decisive action is required. With that in mind, I do not envy the person who does get the nod from President Obama to take the reins at the USPTO. Like Jon Dudas, he or she is going to disappoint a lot of people. And if the last six years are anything to go by they will not be slow in expressing their angst.
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