Joff Wild

Recent developments indicate that we may, finally, be getting close to finding out who the next Director of the USPTO is going to be. As this blog recently reported, at the start of September the office got a new chief of staff, while last Friday acting Director Teresea Stanek Rea announced that she is to stand down “in the near future”. She went on to explain: “It is my anticipation that we will soon welcome a new Director who will continue guiding the excellent work of the agency. Until then, I will do everything I can to ensure a smooth transition.”

What we do not know is whether Stanek Rea is leaving because she was not offered the job herself, or because she declined to take it. Either way, though, it looks as if someone new is coming in sooner rather than later. The question now is who will it be?

There have been some rumours that the administration favours the appointment of the first woman permanent Director of the USPTO. If that is the case it might make Michelle Lee, who was to have headed up the now mothballed Silicon Valley satellite of the office, a favourite. Lee was also a strong contender when the deputy Director role was up for grabs just after David Kappos took over the reins. However, she would be a very controversial appointment given her long association with Google and that company’s prominent role in current calls for substantial revisions both to the US patent litigation system and to the patentability of software.

Another possibility might be Arti Rai, who served as Administrator of the Office of External Affairs at the office and played an important role in the policy development that led to the America Invents Act; she was also a member of the transition team that reviewed the USPTO after President Obama was first elected. Rai learned all about IP politics when she was at the office and is already familiar with many of the issues the Director will have to deal with - not only with regard to current domestic debates, but also internationally. This would enable her to hit the ground running rather than having to spend time familiarising herself with a swathe of new topics. And with a background in the life sciences she could also bring a perspective that goes beyond high-tech.

That last point strikes me as a very important one. Kappos was from the technology sector, it’s the area in which new chief of staff Andrew Byrnes majored in his previous job as a partner in the Silicon Valley offices of Covington & Burling. But while NPEs and software patents have tended to grab the headlines, the fact is that neither is that relevant to the vast majority of US patent owners. What’s more, patents are only half the job at the USPTO – trademarks are a very big deal too.

While it would surely be unimaginable, not to mention profoundly unwise, for the next Director to have no patent background (though in the recent past some have not), it would not be unreasonable to expect the new man or woman to have a wide IP hinterland. The appointment of another USPTO chief from the tech sector would risk sending a lot of wrong signals, not only to the office’s domestic users, but also to the wider international community, which would like to see the US playing a prominent role in all manner of important global IP debates.

One thing is for sure, though: the identity of whoever gets the job will be a clear indication of just where the Obama Administration is going with IP. The days of the USPTO being an administrative backwater are long gone. Let’s hope the President and the Commerce Secretary fully comprehend the implications of that.