IP Watchdog: Will Obama Nominate Anyone for the USPTO?, by Gene Quinn
This post originally appeared in IP Watchdog on August 5, 2014.
In recent weeks news has come out that Phil Johnson’s nomination as Director of the United States Patent and Trademark Office is dead. It seems to be dead due to the protest of at least one Senator on the Senate Judiciary Committee, not because the onerous vetting process produced any red flags or because the White House has lost interest. The Senator allegedly unhappy is Senator Chuck Schumer (D-NY).
Johnson, a strong proponent for patent reform, publicly questioned the need for expanding covered business method (CBM) review, which has long been a pet cause of Shumer’s. Schumer is on record as supporting CBM and wanting to expand the reach of this post grant patent challenge. It is believed Schumer is so invested in CBM because those primarily using CBM are banks and other financial institutions, which is where Schumer receives much of his considerable financial backing and political support. More recently Schumer has also been lobbied by App developers and others who would like CBM review to become available to challenge all software patents.
If the news of resistance on the Senate Judiciary Committee is true the question then turns to whether anyone qualified for the job of Director of the USPTO could be confirmed. Virtually everyone in the industry questioned the wisdom behind expanding CBM review; Phil Johnson was hardly an outlier on that subject. In fact, even Microsoft and Apple broke off from the Google/Cisco high tech collaboration to question the wisdom of expanded CBM review. It was a bad idea to expand CBM. If support for expanding CBM becomes a litmus test then it seems unlikely that a candidate will emerge that is both acceptable to those who adhere to the Google/Cisco orthodoxy and who would also be acceptable to pharma/biotech and the rest of the patent community that needs strong patents and a fully functioning patent system.
Indeed, the nominating process for the next Director of the USPTO is shaping in a way that defines the broader patent debate, between those companies for which strong patent protection is absolutely essential and those companies, far fewer in number, that would prefer that the patent system simply go away.
To read the full post please visit the IP Watchdog site here.