Joff Wild

As the US prepares for Barack Obama to assume the presidency next Tuesday, two more organisations have put pen to paper and sent him advice on how his administration should run IP policy.

In its letter, the INTA not surprisingly focuses on issues such as anti-counterfeiting and the internet. For its part, the IP section of the Amercan Bar Association focuses on the US Patent and Tradmark Office and suggests a number of reforms which it believes will enhance its operation.

Both letters touch on the the role of the Director of the office and the experence he or she needs in order to the job as effectively as possible.

The INTA states: 

It is critical that the Director and Deputy Director have the necessary management skills to administer [the office's] complex and extensive business processes. At the same time, in the capacity of Undersecretary, INTA recommends that your nominee have an extensive knowledge of policy and law for both patents and trademarks. It is critical that the Director and Deputy Director have the necessary management skills to administer its complex and extensive business processes and a broad knowledge of trademark and patent policy and law.

Like the US Chamber of Commerce late last year, the ABA goes further than that and calls for someone who has worked in IP law to be given the top job: 

Twenty years ago, the American Bar Association adopted a policy advocating “any person selected to be Commissioner or Deputy Commissioner of Patents and Trademarks be a lawyer having experience in patent and trademark law, knowledgeable of both domestic and international laws concerning these matters, and well qualified to represent the United States Patent and Trademark Office domestically and to advocate United States positions on patent and trademark matters internationally.” ... Ten years ago, in recognition of the growing size and complexity of the U.S. government’s patent and trademark operations, the ABA amended the above policy to also recommend that persons selected for these two offices “have management skills sufficient to oversee the operations of the Patent and Trademark Office.” Title 35, United States Code contains a similar but less demanding statement of qualifications for the Director, that he or she “has a professional background and experience in patent or trademark law.” In recent practice, even this minimal requirement has not been demanded of all those appointed to the Office of Director of the PTO. We urge that the new Administration insist that appointees as Director and Deputy Director have the qualifications called for in the ABA policy. 

And just like the US Chamber of Commerce, what the ABA fails to do is explain why "any person selected to be Commissioner or Deputy Commissioner of Patents and Trademarks be a lawyer having experience in patent and trademark law". Surely the US patent and trademark systems are far too important to be a closed-shop in which only those who have practised IP law get to make vitally important decisions about how they should function. As I have said previously, the truth is that all Americans have a stake in the health and vitality of IP in their country. What works best for IP attorneys may not be what works best for the US as a whole. To restrict the top jobs in IP to just a section of American society would be counter-productive and could run the very real risk of excluding people with the vision and ability to bring real leadership to the USPTO at a time when IP has never been a more important business and political issue.

By implication, of course, what all those who are calling for the new USPTO director to be an IP lawyer are saying is that while Barack Obama may be acceptable as the US president, he would never do as the head of the patent and trademark office - he just does not have the right qualifications.

It is quite possible that the best person for the USPTO job is a patent attorney with long experience of working inside the IP bubble. However, it is just as possible that the best candidate could be found elsewhere. Lawyers arguing for the exclusion of anyone but a lawyer from the position run the risk of looking like nothing more than people with a vested interest, not like people with the best interests of the US IP system at heart.