Joff Wild

The naming of three new members of the Patent Policy Advisory Committee seems to have got a lot of people hot under the collar in the United States. The Patent Docs blog, for example, approvingly quotes Hal Wegner, who in a recent email to his newsletter subscribers is reported to have described the appointment of Stephen Pinkos to the committee as “part of an effort to "whitewash" the incompetence of the current management” at the USPTO. Furthermore, the most recent PPAC report is said by the Docs to reinforce this impression because it is nothing more than “a glowing encomium to the Office's success in promoting patent "quality"”.

Now I know that many US patent practitioners are frustrated, angry even, at the way the USPTO has been run over recent years. I also understand and sympathise with many of their grievances. But I often wonder if the intemperate language and the constant accusations that no-one who has anything to do with the USPTO knows anything about patents actually does anyone any good.

For example, let’s look at who authored that 2007 PPAC report. Among those putting their names to it were Kevin Rivette, the committee’s chairman, Gerald Mossinghoff, Carl Gulbrandsen, Andrea Ryan and Dean Kamen. Would these people, all of whom have long and respected experience in US patent law and practice, as well as records of substantial achievement, really have authored a piece of work designed merely to “whitewash” the USPTO? If so, why would they have done so? What on earth would they stand to gain from doing such a thing? It seems to me that if you are going to make such accusations you need to explain why they stand up to scrutiny. Otherwise it just looks like you are flailing around because you do not like the message that is being delivered.

Likewise, I can understand why the appointment of Stephen Pinkos might upset people. But let’s remember, Pinkos is just one member – and a junior one at that – of the PPAC. Are the other members of the committee so weak-willed, so lacking in judgement and moral courage that they will allow him to dictate their activities and the message they deliver? I look at names such as Rivette, Damon Matteo, F Scott Kieff and Marc Adler, and have very strong doubts that this is the case. Maybe I am wrong, but where is the evidence?

In the past I have been accused of being a USPTO apologist (and worse!) because I have failed to criticise it at each and every opportunity. No doubt this blog will produce a similar reaction. But the simple fact is that I am merely a disinterested observer. I understand that there may be major problems with the office and the way that it is run, and I accept absolutely that it has made significant mistakes, but I refuse to believe that all those who point out that not everything is doom and gloom are incompetents, conspirators and/or merely in the office’s pay. As a journalist, what I need to see is evidence of these things – and of systemic decreasing quality – before I can report them. But all I have seen up to now are angry words and accusations.

In the end, taking such a hostile line is not helping anyone. From where I sit, it is a natural reaction to button down the hatches when under attack. It may not be the right thing to do, but it is surely understandable. If senior management at the USPTO feels it is under siege, then it may as well act as if it is under siege. If all you are going to get is hostility, why not cut off dialogue and just get on with what you want to do? On the other hand, if there is engagement and constructive criticism, it becomes much harder to ignore. That’s why the draft report on the USPTO from the US Chamber of Commerce is such an interesting development.

Very soon Jon Dudas will be leaving the USPTO and hopefully that will be an opportunity for relations between the office and the user community to be restored. However, what if the new regime does not deliver everything that the patent bar would like to see? As I have said before, I think that is quite possible. The reaction to such a development cannot be another round of open warfare, surely.