Joff Wild

As forecast on this blog a couple of weeks back, David Kappos - the current head of IP law at IBM - is to be nominated as the next Director of the US Patent and Trademark Office by President Obama. The news comes more than six weeks after the Commerce Secretary stated the candidate had been identified and was going through a final vetting procedure. Given the time span involved you have to assume that it was incredibly thorough and that nothing is going to emerge now that will scupper Kappos's path to the Alexandria hot seat. 

David Kappos has been with IBM for over 20 years and is steeped in that company's IP culture. He fully understands that IP is a business asset of fundamental importance and he has long experience of how it can be used to create value in myriad of ways. As a senior member of many national and international IP organisations, Kappos is very familiar with the pressing issues facing not only the US Patent and Trademark Office, but also the international IP system. He has shown himself to be a deep thinker about the future. I know, for example, that he was very impressed with the Scenarios for the Future project developed by the European Patent Office, and used this to inform his idea for a European Interoperability Patent, which he spoke about to IAM a couple of years back. Those who were at The Hague in 2008 for the last Trilateral Users meeting will remember Kappos making a very interesting presentation about the possibility of future real-time work sharing between examiners at patent offices across the world. IBM was also one of the prime movers behind the USPTO's peer to patent project. On the major recent IP issues in the US, IBM welcomed the compromise reached by the US Seate Judiciary Committee over damages apportionment. It was also pleased with the CAFC's decision in the Bilski case, which the Supreme Court recently agreed to hear.

Over recent years, Kappos has been very keen to talk about patent quality and what he believes is the decine in the standard of rights being granted by the USPTO. However, what he has been less willing to talk about is the role companies such as IBM may have had in this process, if it really is taking place. Year in and year out under Kappos's leadership, Big Blue has received more US patent grants than any other company. Is it possible that if the company, and many others like it, had been more selective in what it sought protection for, examiners at the office would have had more time to do their jobs and so more opportunity to weed out dubious applications? Indeed, Kappos's big business, Big Blue background may disturb some who will see him as an insider with a very particular agenda. And it is certainy true that he is going to have to learn that there are numerous stakeholders in the US and international IP system - not all of whom view rights in the way that IBM does. 

As the new Director of the USPTO, Kappos will be taking up his job at a very difficult time. According to recently released figures, the office is currently experiencing a shortfall of $140 million in income due to a drop in filings. There are also a huge patent application backlog to tackle, big fences to mend with many parts of the user community, while morale among office staff is also frequently said to be low. On top of all this, there are major IT issues to be dealt with. Clearly, Kappos is going to be a very busy man. In a year's time, he may be sitting behind his desk wondering if it has all been worth it - especially as you can bet your bottom dollar he will take a hefty pay cut it he does assume the role.

For my part, I think he will do an excellent job. He knows the issues; he has a strong IP background; he comes from an industry in which IP is hugely important; he knows all the major players; he has long management experience; and he thinks deeply about IP and its role in society. Frankly, I cannot think of anyone better to do the job. He is not perfect, but who is? President Obama has made a good choice.