One key voice is missing from the debate on Capitol Hill on major reforms to the patent system—the head of the U.S. Patent and Trademark Office. That’s because there hasn’t been a director for more than 10 months—and patent attorneys are highlighting the void.
Foley & Lardner partner Harold Wegner, a well-known voice in IP law, sent out a newsletter Monday titled “Whither Administration Leadership in Patents?” Wegner included no text in the email, only a screen capture of the leadership page on the PTO website that, he said, “speaks for itself.”
Where official photos of a director and deputy director would be, there are icons of black silhouettes on a gray background and the word “vacant.” There has been no nominee to replace David Kappos, the director for three years who announced his departure a year ago and left the office in January.
Kappos did testify at the only hearing on a major patent reform bill this year on Capitol Hill. But he did so in his new role as partner in Cravath, Swaine & Moore’s New York office. No representative of the Obama administration testified at the October hearing on the Innovation Act.
Wegner said the absence of an administration voice is a problem when it comes to the hodgepodge of patent reform bills moving quickly through Congress, including a leading proposal in the House and several bills in the Senate.
“We really need to have an administration spokesman who knows what’s going on to help guide,” Wegner said in an interview Monday with The National Law Journal.
Robert Stoll, a co-chair of Drinker Biddle & Reath’s intellectual property practice group, said that even acting directors leave a void in the administration.
After Kappos left, former Crowell & Moring partner Teresa Stanek Rea took over as acting director. She resigned from the PTO on Nov. 21. Now, Margaret “Peggy” Focarino is the acting director, and Stoll said even someone as talented as her can’t make up for being only in that acting role.
“She does not have the authority of having the position, which mutes her to some degree,” said Stoll, who retired from the PTO as commissioner for patents, the third in command. “I don’t think there’s a focused voice on the issues, with the sole purpose of intellectual property.”
The Innovation Act contains language that would alter the PTO process, such as changing the standard of claim construction in the PTO’s inter partes reviews and post grant reviews. And the bill does not contain some of the PTO’s long-wanted provisions—such as keeping all the fees it generates, or being exempt from budget cuts called sequestration.
The House Judiciary Committee approved the legislation last week. The bill is expected to get a vote in the full House as early as the next two months.
In the meantime, President Obama has not nominated a new under-secretary of commerce for intellectual property and director of the PTO. That nominee would still have to go through a Senate confirmation process that could take months.
The White House press office did not immediately respond to questions on the issue Monday. An email and phone call to Kappos went unanswered Monday.
Contact Todd Ruger at firstname.lastname@example.org.