Patent News

Jul. 1, 2014

Intellectual Asset Management: If not Johnson for the USPTO, then who?, by Richard Lloyd

This post originally appeared in Intellectual Asset Management on July 1, 2014.

By most measures Phil Johnson would appear to be an excellent choice as the next director of the USPTO. That the Obama Administration appears to be delaying putting his name forward says much about the febrile climate that currently engulfs the debate around patents in the US.

Having joined Johnson & Johnson in 2000 after a career in private practice, Johnson has made his way through a number of senior ranks in the IP team of the healthcare company to his current position as Senior Vice President of Intellectual Property Policy and Strategy. He is also the current president of the Intellectual Property Owners Association and is a regular representative of the 21st Century Coalition for Patent Reform, which counts Eli Lily, GE and Procter & Gamble, as well as Johnson & Johnson, among its members. He is seen by many members of the patent bar as a sensible, balanced voice and, therefore, an ideal candidate to succeed David Kappos as head of the USPTO.

However, it is his involvement with the C21 Coalition, accused by some as being one of the drivers behind the collapse of patent reform in the Senate in May, which has fuelled much of the push back against Johnson’s nomination. The potential appointment has been reported negatively in a slew of tech-based, pro-reform news outlets, including the likes of Ars Technica and Techdirt, while yesterday the Main Street Patent Coalition, a powerful alliance of retailers, restaurants, banks and small businesses, issued a statement outlining its vehement opposition to Johnson’s selection.

Here’s what Coalition manager Michael Meehan had to say in the statement: “American business owners remain vulnerable to patent troll lawsuits and now one of the most prominent opponents of reform has been appointed to be the umpire, calling balls and strikes for USPTO. Mr Johnson spent years trying to keep patent trolls in business by blocking legislative efforts and so we cannot expect him to make fair calls.”

Judging by that language, the MSPC clearly thinks that Johnson’s nomination has already been sealed. However, given that his name has been swirling around the DC ether for several weeks, it would seem that the White House has been keen to nominate Johnson for some time but his opponents have managed to gain some traction.

As a prominent member of the IP community many of Johnson’s views are readily available. He has appeared on behalf of the 21st Century Coalition several times before various Congressional committees to offer the Coalition’s view of reform. Much of what he has said supports his reputation as a rational voice in the ongoing debate. Take, for example, this excerpt from his statement when he appeared before the Senate Judiciary Committee last December.

“In the view of our Coalition, patent troll abuse involves the use of court proceedings, or threats of them, to press specious claims or defenses for the purpose of coercing settlements driven solely by the desire to avoid litigation costs. Such practices can be perpetrated by any litigant who is so inclined, and while the effectiveness of the tactic will vary based upon the parties’ circumstances and means, the identification of the abuser turns not on who the party is, but rather how they behave.”

It’s hard to think of a better description of the core of the problem that much of patent reform aims to address.

So, if Johnson’s nomination can’t garner adequate support you would have to ask, who would be an acceptable head of the USPTO? With Michelle Lee seemingly off the table as a candidate, it is hard to imagine that someone who would meet with the positive approval of the hard core reformers now screaming blue murder at the idea of Johnson taking charge at the agency, and perhaps causing the White House to wobble, would be acceptable to many other stakeholders in the patent system. Thus, we might face the prospect of the US’s top IP job being left vacant for the remainder of Obama’s second term.

It could also be that the furore aroused by Johnson’s possible nomination indicates that the Director’s job is likely to become much more politicised than it has been up to now. That may well make the task of identifying future post-holders even more complicated than it has been in the past. Even now, finding someone is tough enough – what with the in-depth screening and the big salary drop most suitably qualified candidates will face. That said, if the outcry about Johnson has caught the White House by surprise, it does not say much for its understanding of patent politics – something that Johnson himself may want to think about before he takes the job if it is finally offered.

Despite all this, the potential good news is that if the Obama Administration does put Johnson’s name forward to Congress then his nomination process could open up a healthy discussion on the state of the patent system in the US. That would be hugely beneficial to the debate around reform. And something to be welcomed, whichever side you’re on.