Patent News

Jul. 1, 2014

IP Watchdog: President Obama Poised to Nominate Phil Johnson PTO Director, by Gene Quinn

This post originally appeared in IP Watchdog on July 1, 2014.

The National Journal is reporting that President Obama is poised to name Phil Johnson as Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. Johnson is currently Senior Vice-President for Intellectual Property Policy & Strategy at Johnson & Johnson.
“I’ve worked on legislative issues with Phil over the years through AIPLA,” said Nicholas Godici, former Acting Director of the USPTO and Commissioner for Patents. “Phil is very knowledgeable, fair and willing to listen to opposing views. He is certainly a well qualified candidate and in my view an excellent choice.”

Godici wasn’t the only high ranking former USPTO official to have extremely positive things to say about Phil Johnson. “I have worked with Phil Johnson on many different patent proposals over the years and have always found him to be thoughtful in his analysis of issues and willing to look at many different solutions to a problem,” said Robert Stoll, former Commissioner for Patents and current partner at Drinker Biddle. “Phil knows the patent system very well and is always seeking to improve it. He would be a great leader for the USPTO as he would need no ramp-up time and he would be able to reach reasonable compromises when others could not.”

Further, in his widely read e-mail newsletter, Hal Wegner explained: “There has been an overwhelmingly positive reaction to this development amongst insiders who see in Johnson a strong, capable leader with extensive experience both in management of patents at a major pharmaceutical company as well as many years as a first chair patent litigator.”

Indeed, Phil Johnson would not be just a good choice to run the USPTO, but he would be an outstanding choice. Johnson is well known in the industry, he is known and trusted on Capitol Hill, having testified numerous times in front of various Congressional Committees on a variety of patent issues. While I have not always agreed with Johnson on substantive issues, he is extraordinarily knowledgeable, thoughtful and highly respected. He will be an excellent Director of the USPTO, he should be appointed immediately, and the Senate should confirm him without delay.

Of course, the world of politics is never quite as simple as it ought to be. Johnson has detractors, which is almost incomprehensible, but there are those who are unhappy. There is no doubt that Johnson coming from the pharmaceutical industry will rub many the wrong way. Why? As far as I can tell there is just an irrational hatred of pharmaceutical companies as if they are evil incarnate. In some circles the words “pharmaceutical companies” can hardly be uttered without the words “big” and “evil” preceding. Like everyone else I wish the best new drugs cost less, but I also wish I would find a bottle with a genie and get three wishes! The reality is this: If we want new drugs, treatments and cures someone has to pay for it. No one is to blame for the fact that upwards of 90% of all drugs fail, and for companies to stay in business they need to make a profit. So to tar Johnson with an irrational hatred of pharmaceutical companies would be shortsighted and ridiculous. It also ignores the reality that Johnson & Johnson is far more than a pharmaceutical company. Johnson & Johnson is also the world’s largest and most diverse medical devices and diagnostics company, as well as the world’s third-largest biologics company.

Johnson’s detractors are also pointing to the fact that he was not in support of the most recent round of patent “reform,” but truthfully very few within the industry were in favor of the latest patent legislation, which is why it went down to a rather ignominious defeat. There were some within the tech sector who were pushing hard for the latest failed patent reform, such as Google, but after being in harmony with Google for many years Apple and Microsoft finally broke off and similarly did not support the failed patent legislation. Therefore, anyone who says that “tech is upset because Johnson didn’t support patent reform” is simply not being completely truthful. There were many within the tech sector who rely on patents to make their research and development worthwhile who were in agreement with Johnson. Furthermore, there is absolutely no doubt that the pharmaceutical industry will find Johnson acceptable, and the pharmaceutical industry is one of the most important of all U.S. industries.

Of course, those who are pointing to Johnson not supporting the latest failed patent legislation and trying to make the case that he is opposed to reform are grossly overstating their case for another very important reason. Johnson was one of the front line supporters of the America Invents Act (AIA), which passed in September 2011. The White House was firmly behind the AIA, with the Patent Office working with Congress, the Administration and many industry groups to get the legislation across the finish line. The White House never really got behind the latest failed patent legislation in the same way. Sure, they were giving lip service, but Obama Administration was all-in on the AIA. Thus, it is completely correct to notice that on President Obama’s primary achievement relative to patents Johnson was a major player and key influencer in the private sector. As far as I can tell there was no daylight between Johnson and the Obama Administration on the AIA. That likely played a key factor in the decision to nominate him as Director of the USPTO.