27 Comments

Summary:

The Obama Administration’s expected choice to lead the Patent Office is a Johnson & Johnson lawyer who has been a key figure in blocking attempts to reform the patent system.

Patent Office
photo: UPSTO

The Obama Administration is set to appoint Phil Johnson, a pharmaceutical industry executive, as the next Director of the United States Patent and Trademark Office, according to sources. The move is likely to anger patent reform advocates given Johnson’s past efforts to block legislation aimed at reining in patent trolls, and in light of his positions that appear to contradict the White House’s professed goal of fixing the patent system.

News of the impending appointment comes via a patent insider in Washington, and is supported by other sources, including leaked emails (pasted below) from a prominent patent lawyer .

The top job at the Patent Office has been vacant for around 18-months since the departure of previous director David Kappos in early 2013. Currently, the office is being managed by former Googler Michelle Lee, who was appointed deputy director in December. Earlier this month, Republican Senators led by Orrin Hatch (R-UT) sent a letter to President Obama that praised Lee but that also described the current UPSTO management structure as “unfair, untenable and unacceptable for our country’s intellectual property agency.”

The White House’s choice of Phil Johnson, who is a long-time lawyer for Johnson & Johnson, to fill the vacancy is likely to prove a bitter pill for patent reform advocates, who include tech companies, scholars and main street retailers.

In December, Johnson testified before the Senate on behalf of the 21st Century Patent Coalition, a group of companies who opposed a bill that would have made it easier for defendants to challenge low-quality patents, and to recover legal costs in the face of frivolous patent lawsuits. (Johnson’s group ultimately prevailed last month when Senate Democrats killed the bill altogether.) Johnson has also opposed previous patent reform initiatives, describing them as “almost everything an infringer could ever want.”

Johnson’s positions on patents may reflect the outlook of the pharmaceutical sector, an industry that relies heavily on patents to recoup R&D spending. But as economists like the late Nobel winner Gary Becker have noted, the pharma industry appears to be in a unique position — and the sort of strong intellectual property protections it requires often make little sense in fast-moving sectors like technology.

Here are the emails describing Johnson’s expected appointment (and here is a link to President Obama talking about patent reform during the State of the Union address).

From: “hwegner@foley.com” <hwegner@foley.com>
Date: June 27, 2014 at 4:09:39 PM EDT
To: Undisclosed recipients:;
Subject: Under Secretary of Commerce for IP and PTO Director-designate Philip Johnson

Philip Johnson is in line to succeed David Kappos as Under Secretary of Commerce in charge of the Patent Office, according to reliable sources.  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.

From: Wegner, Harold C.
Sent: Thursday, June 26, 2014 11:13 AM
Subject: NLRB v. Canning: Recess Appointments; Whither PTO Leadership, Under Secretary Philip Johnson?

* * *

Under Secretary Philip Johnson?  Since the initial note several days ago that “there’s talk” that Johnson & Johnson pharmaceutical executive Philip Johnson is being considered for the Under Secretary position to head the Patent Office, there has been no denial from the Administration (or Mr. Johnson or anyone else) that disputes this report.

  1. Why do Republicans insist on believing the Obama is a liberal when he has consistently demonstrated that he will choose corporate interests over the public good on any issue of substance?

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    1. Why do liberals insist only Republicans choose corporate interests? Saying you care about the public good doesn’t mean you do.

      The finger points both ways.

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    2. @Sarcasticol. You should listen to Mark. He’s dead on. Party affiliations are irrelevant. What matters is truthful actions having good intentions. Nothing more. Nothing less.

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      1. Jake Stevens Sunday, June 29, 2014

        I think that was Sarcasticol’s point. He doesn’t care that Obama is a Democrat, he’s mad that Obama’s not really a liberal, and feels that calling him one is tarring liberals by association.

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        1. Free Thinker Monday, June 30, 2014

          But Sarcasticol seems to think that liberals work on behalf of the public good. The facts don’t back that up. Liberals talk public good while lining their pockets with corporate money.

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          1. I think you’re having trouble distinguishing ‘liberal’ from ‘Democrat politician’. True liberals do work on behalf of the public good, but very few of them actually make it to Washington or are corrupted by it soon after arriving.

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          2. Not to nitpick, but his name is spelled “Sarcastico”. There’s no letter “l” in it. How can you people be so inattentive and yet expect to be taken seriously?

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  2. Isn’t there another guy in a similar position with similar ‘credentials”? Maybe I saw it on the daily show or Colbert.

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    1. Perhaps you mean Tom Wheeler at the head of the FCC?

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      1. Robert J. Berger Monday, June 30, 2014

        It was John Oliver on his own show Last Week Tonight With John Oliver https://www.youtube.com/watch?v=fpbOEoRrHyU. Phil Johnson is another dingo babysitting your child. We need to broaden the statement “Cable Company Fuckery” to just plain Corporate Fuckery.

        And yes, the Republican Party and the Democrat Party are both the party of Corporations United aka The Plutocracy.

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  3. If Johnson is against patent reform initiatives that would be “almost everything an infringer could ever want”, I’m all in favor of that. And so should everyone who is in favor of inventors and their patent rights.

    Patent infringers: the REAL patent trolls.

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    1. You’ve clearly never invented anything. If you did, you would have come to the same rage that all of us did when we found out that certain patents are owned by trolls that do nothing except litigate.

      I attempted to create a social media client for people with dyslexia. It would read the text on the screen to them, and it would allow them to use voice-input to “type” content into the system. Additionally, if they held their finger on any word, it would read the definition to them. Almost every single bit of functionality that I wanted to combine into a brand new solution that would help people like my sister, is blocked from consideration because a few trolls own those patents, have no intention of developing them into anything, because litigating against those who attempt to innovate in obviously human-beneficial directions is far more profitable.

      With Phil Johnson at the helm, you can rest assured that this situation will not be remedied.

      Please. Tomorrow, try to invent anything of use that isn’t in market already. Then, after you’ve independently developed a new method or mechanism for solving a current problem, see if there are any trolls waiting for you to sink all of your money, time, and enthusiasm into an independent product or service, before taking everything from you in a certain Texas District Court, with no recourse, and a lifetime of legal bills that will prevent you from ever attempting to invent something again.

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      1. Dallas, sorry to hear about your experience.

        It’s not clear whether the person/company asserting against you had a valid patent(s) that read on your work. If not, if indeed you were simply out lawyered there is probably recourse and help.

        The is an even simpler way to deal with your goal and problem. The strategy is best kept secret since its effectiveness will be lost if it becomes public.

        A good part of the problem is peculiar to software and cries out for a solution similar to that which governs chemical patents.

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      2. @Generally Dallas,

        You clearly like to make bad assumptions. I AM an inventor and do have patents; therefore, your entire point based on that incorrect assumption is invalid.

        I’m Sorry you had a bad experience, but everyone knows that before you “invent” something, you should first seek patent protection in order to protect your work from infringers and shield your work against other patent claims. Additionally, never show your cards while playing the game of business until it’s time to cash in.

        I wish you all the best.

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        1. Meanwhile people who need things such as what “Generally Dallas” attempted cannot have them because somebody is holding patents for what are arguably pretty obvious ideas, not developing them and suing anyone who does. I don’t really care what you have invented. Supporting a system like that is pretty damn evil.

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          1. No. *Infecting* an otherwise working system is where the evil lies. You need to put your blame on the correct party. I support the inventors. Any one else, whether an infringer or otherwise, must answer to a higher authority. So, in your attempt to stop the bad, you shouldn’t punish the good (the inventors).

            Also, @Generally Dallas should realize that if there was money to be made with his idea, then the people he is fearful of would indeed have already brought that product to the market. Or would have licensed it to another entity proceeding ahead in pursuit of the opportunity, maybe even licensed to @Generally Dallas himself because there is so much potential with the product. But no one has. And @GenerallyDallas really doesnt believe in the product, or he would do it regardless of others. So that speaks for itself.

            Plus, acting, or not acting, as a result of fear of something that has not been actualized (a potential patent lawsuit, in this example) is not how any man should approach their decisions. Rather, we all should go create a dent in the universe. Others will only come knocking at your door if you have already succeeded. And then you already have so much, that it’s nothing to make amends for using another’s idea. But credit must always be given where it is due, and we don’t need to do anything that would punish the inventor community.

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        2. You missed my point. The fact that there are trolls out there sitting on patents for the sole purpose of litigating with them is the point. Sure, I went out on a branch and it broke when it comes to my assumptions, but the real issue is not that I “showed my cards”. It’s not that I didn’t do research.

          I did do research, I didn’t want to “keep my cards close to my chest”, as I wanted to make the project open-source. It’s after the research, but before development that I discovered that because of patent trolls, it was not possible without an unacceptable amount of risk that everything could be suddenly taken away by a few greedy lawyers that have bad laws on their side.

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        3. To clarify, my experience was that I did the research, and was forced to abandon development of the idea because several key technologies had ambiguous patents which COULD be used in the future to steal away the developed system, and inflict great financial pain upon those involved.

          I did not develop something without researching it. I was prevented from even entertaining the idea because of “inventors” that never developed the technology into anything, but instead sunk their money into attorneys around the United States District Court for the Eastern District of Texas, because the litigation proves far more profitable than developing the idea.

          You don’t see anything wrong with the parts of the system that enable an economy in which suing others is more profitable than developing the ideas they’re suing over themselves?

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          1. If they infringe, then no, I don’t see anything wrong with suing those who do infringe. That’s the law, and it’s written to protect inventors and their ideas. If you want to say that the current law is unfair, I encourage you to look deeper at the real problem, and how the patent troll issue came to exist in response to corporate patent infringement and bullying in the courts. Small inventors can’t bear those costs, so they strike deals with patent pooling and assertion agencies who can, and then give them the protection that they are entitled. So blame the corporate bullies by their refusal to license and bully with their massive legal budgets. It’s cheaper for them to litigate and scare off an inventor than it is for them to license.

            But for your particular situation, Two points:
            1) If you really wanted to create this product, then you can license the patents from the patent holders.
            2) But before doing anything, you assumed a risk existed because you assumed that their patent claims, taken in light of the written patent specification(s), would read on your end product.
            A) Did you consult a patent agent or attorney to see if this was indeed the case?
            B) If A) is true, did you also consult a patent professional to find out ways you could work around the patented claims?

            Because if not, you have no argument, because you didn’t do a proper job in your research. If you did steps 2) a) and b) above, and they didnt turn out in your favor, then you always have step 1). And that all depends on how passionate you are on creating your solution.

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            1. Mike, I can assure you that if I patent anything you need, you and everybody associated with you will have to pay 100,000% more than anybody else. There will be no negotiation about it. You pay, or I’ll sue you into submission.

              You support a world in which ideas are taken hostage by the wealthy. You promote it, even.

              I can only imagine that you’re a staunch libertarian that rejects the idea of fair, and cooperation.

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  4. Tell us jeffjohnny exactly what you mean by patents make “little sense in fast-moving sectors like technology”?

    While you are at it also tell us exactly what your experience is in “technology” whatever you think it to mean.

    Some of us create core technologies that open new doors and we are lucky to get a four or five years of royalties before the patent expires. Perhaps we should revise the patent law so that it is easy for successful technologies which increase our knowledge and capabilities to be extended just the Pharma patents are today.

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    1. Yes, jeffjohnny, please enlighten us. My guess is that you won’t, just like you have ignored my question in other comments here on GigaOm, continuously sitting on your side of the fence, merely throwing rocks over, without actually standing up to see what is on the other side. Obviously you are being paid into throw those rocks.

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  5. Adam Taylor Monday, June 30, 2014

    WHY DOES THIS DODGY SHIT KEEP HAPPENING? They just keep spitting in citizen’s faces!

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  6. ‘…past efforts to block legislation aimed at reining in patent trolls.’

    Can you say dissemble? All this talk about trolls and so called ‘patent reform’ is just spin control by large infringers and their paid puppets to cover up their theft.

    http://www.npr.org/player/v2/mediaPlayer.html?action=1&t=1&islist=false&id=276448190&m=276545654&live=1
    http://www.npr.org/2013/11/06/243022966/secret-persuasion-how-big-campaign-donors-stay-anonymous

    The patent system now teeters on the brink of lawlessness. Call it what you will…patent hoarder, patent troll, non-practicing entity, shell company, etc. It all means one thing: “we’re using your invention and we’re not going to stop or pay”. It’s a pure red herring by large invention thieves and their paid puppets to kill any inventor support system. Their goal is to legalize theft. The fact is, many of the large multinationals and their puppets who defame inventors in this way themselves make no products in the US or create any American jobs and it is their continued blatant theft which makes it impossible for the true creators to do so. To infringers the only patents that are legitimate are their own -if they have any. Meanwhile, the huge multinationals ship more and more US jobs overseas.

    It’s about property rights. They should not only be for the rich and powerful -campaign contributors. America’s founders: Jefferson, Franklin, Madison and others felt so strongly about the rights of inventors that they included inventors rights to their creations and discoveries in the Constitution. They understood the trade off. Inventors are given a limited monopoly and in turn society gets the benefits of their inventions (telephone, computer, airplane, automobile, lighting, etc) into perpetuity and the jobs the commercialization of those inventions bring. For 200 years the patent system has not only fueled the US economy, but the world’s. If we weaken the patent system, we force inventors underground like Stradivarius (anyone know how to make a Stradivarius violin?) and in turn weaken our economy and job creation. Worse yet, we destroy the American dream -the ability to prosper from our ingenuity for the benefit of our families and communities. To kill or weaken the patent system is to kill all our futures. Show me a country with weak or ineffective property rights and I’ll show you a weak economy with high unemployment. If we cannot own the product of our minds or labors, what can we be said to truly own. Life and liberty are fundamentally tied to and in fact based on property rights. Our very lives are inseparably tied to our property.

    Prior to the Supreme Court case eBay v Mercexchange, small entities had a viable chance at commercializing their inventions. If the defendant was found guilty, an injunction was most always issued. Then the inventor small entity could enjoy the exclusive use of his invention in commercializing it. Unfortunately, injunctions are often no longer available to small entity inventors because of the eBay decision so we have no fair chance to compete with much larger entities who are now free to use our inventions. Essentially, large infringers now have your gun and all the bullets. Worse yet, inability to commercialize means those same small entities will not be hiring new employees to roll out their products and services. And now those same parties who killed injunctions for small entities and thus blocked their chance at commercializing now complain that small entity inventors are not commercializing. They created the problem and now they want to blame small entities for it. What dissembling! If you don’t like this state of affairs (your unemployment is running out), tell your Congress member. Then maybe we can get some sense back into the patent system with injunctions fully enforceable on all infringers by all patentees, large and small.

    Those wishing to help fight big business giveaways should contact us as below and join the fight as we are building a network of inventors and other stakeholders to lobby Congress to restore property rights for all patent owners -large and small.

    For the truth about trolls and so-called patent reform, please see http://truereform.piausa.org/default.html#pt.
    http://piausa.wordpress.com/
    http://www.kentucky.com/2014/05/27/3260938/george-ward-patent-reform-could.html?sp=/99/349/
    http://www.hoover.org/publications/defining-ideas/article/142741

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    1. @PIAUSA, keep preaching the truth!

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  7. Christopher S. Jannette Monday, June 30, 2014

    So a patent troll is about to head up the patent office? Day by day my love of country dies.

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  8. It is honestly very simple…

    When the age of the psychopath ends we can not just start rewarding inventors and companies for their discoveries and innovations but we can even fund their research in advance. When the next Galileo, the next Drebel or the next Tesla is identified as such we have to make sure he stays in his lab and has plenty of play things to amuse himself with. The more generous we are the less he or she will care which one of us uses the technology. Even if we are wrong in our assessment 95% of the time the fruits will be virtually endless. The remaining 5% will gift us gifts that keep on giving.

    It will be very different from the half working self funded prototype hoping to be purchased by a private entity who can do little more than make it disappear.

    People mistakenly think capitalism is a kind of collective intelligence that considers all possible alternatives. It just isn’t. If you have an oil empire that is what you have. When one is already doing something it is very hard if not impossible to transition to anything else, no mater how much sense it makes, even if you own the technology and the funds required one is still obligated by law(!) to make money for the investor. The alternatives, however fantastic, new things don’t come with the pretty historic figures and the carefully gathered statistics. Even common sense will always be a gamble in that context. Capitalism is not some all knowing mega brain magically capable of making all the right decisions all of the time.

    Most discoveries, however brilliant, cant make it in such a system. The 5% imagined above [as a worse case scenario] will include all of them, and then some.

    Most of it still wont make it onto the market but at least we would know what we have. It is important for our imagination to see the wonderful things people come up with. If we never see any of it a lone invention presented to us will look like nonsense. It wont inspire us at all.

    We have such a long history of collectively attacking the greatest ideas ever had by man. The future is the opposite direction of that. *points finger*

    The military learned it the hard way, when they found themselves on the battle field with inferior technology the end result wasn’t pretty at all. But innovation is for everyone. When the age of psychopathy ends we can have all kinds of nice things, not just a better rocket, an improved machine gun and a drone that can snipe 500 pedestrians in 3 seconds while flying 1000 mph.

    Think about it :-)

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