19 Comments

Summary:

The Obama Administration has backed away from an unpopular plan to name a Johnson & Johnson executive and patent reform opponent as head of the US Patent Office.

Patent Office
photo: UPSTO

The Obama Administration has changed its mind over a plan to name pharmaceutical executive Phil Johnson as head of the U.S. Patent and Trademark Office, according to multiple sources. The reversal is a victory for the technology industry and other proponents of patent reform.

The plan to appoint Johnson surfaced in late June, and was met with outrage on social media, where critics claimed the choice reflected hypocrisy on the part of President Obama, who had called for fixes to the patent system in his January State of the Union address.

Johnson, a longtime attorney for Johnson & Johnson, was a controversial nominee in part because he helped lead opposition to a bipartisan bill, which died in May, that would have made it easier for companies to challenge bad patents and to seek legal fees from so-called “patent trolls.” He has also publicly scorned previous attempts to reform the patent system.

News of the White House’s decision to backtrack on the appointment came via a person close to the Administration, and was confirmed by several industry sources. The final decision to pull the plug may have occurred after Senator Chuck Schumer (D-NY) vocally declared his opposition to Johnson. Schumer, who was one of the authors of the failed reform bill, has regularly blasted the harm the current patent system is inflicting on start-ups and young companies.

For now, it’s unclear who the White House will name instead of Johnson. The office of Director of the Patent Office has been vacant since out-going director David Kappos stepped down in early 2013, and has been led in the meantime by former Googler, Michelle Lee. Lee would appear to be a logical choice to take the top job, but it’s not apparent that she’s in the running. One source speculated that the Administration could appoint a figurehead, which would let Lee continue to be the de facto leader on policy issues. The White House did not immediately reply to a request for comment.

When the incoming Director is appointed, she or he will confront a large backlog of unprocessed patent applications, and will also have to decide how to address the issue of patent quality. In the last two decades, the Patent Office has issued a flood of questionable patents like one issued to a child for “swinging on a swing.” The proliferation of patents has arisen in part because examiners can only expend a given amount of time on each application, while those seeking patents can repeatedly challenge rejections.

 

  1. Another Dracula at the Blood Bank?
    Leslie

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  2. Meh, why the hell not…we already have Wheeler running the FCC and if that is not a conflict of interest, I don’t know what is.

    While we are at it, lets make Wes Bush, Secretary of Defense and Bill Pepicello, Secretary of Education and Doug McMillon can head the FTC.

    Think about it, it is totally win-win, companies get legislative environments sympathetic to their needs with the illusion of We The People…

    …and maybe they will put some of that unspent lobbying money back into the companies to add jobs.

    B^P

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  3. Jeff,

    I’ve already brought this up in the comments before. Perhaps you don’t understand how the patent system works. Please allow me to enlighten you on the matter.

    Your use of the “swinging on a swing” patent does not help your case. In fact, it shows that the patent system works as designed. Why? This patent (US6368227) is no longer a patent.

    Simply by looking at the legal history — in the very link to the patent that you provided, mind you — anyone can see that:

    1) one month after the patent was granted, a petition was filed for reexamination
    2) all claims for the patent were cancelled as a result of said reexamination, and
    3) not only was the patent declared invalid during reexamination, the patent remains expired due to failure to pay maintenance fees.

    This shows that the patent system does work. Not only are questionable patent applications thrown out during initial prosecution, but in the event granted applications remain questionable, methods a) exist and b) are actually being used to cancel the patent, as was in the case with your “swinging on a swing” example.

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    1. If a patent as ridiculous as this one could pass the initial examination, why bother having the initial examination at all? If this is your example of the system “working as designed” I’d hate to see an example of the system being unfit for purpose.

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      1. Dilip Andrade Thursday, July 10, 2014

        There is a philosophical decision that governs how the patent system operates. Do you decide that the cost of examination should be high so that there are very few cases issued that should not be issued, or do you decide that the cost of examination should be low and that the public can be relied upon to challenge invalid patents after issuance?

        Rightly or wrongly, the patent system has been designed so that it is not prohibitively expensive for an inventor to get a patent. Thus, the costs of examination are restricted because no one wants to pour tax dollars into the patent office to subsidize examination procedures (and similarly there is a desire to have the patent process still be somewhat affordable to a lone inventor).

        Unless the decision is made to provide expanded resources to the patent examination system, the cost of eliminating the overly broad patents will fall to the public. This is how the system works as it is currently designed.

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        1. @Dilip, this provides some great insight. Thanks for this contribution.

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        2. I propose a lax examination process, with a legal system that says that if a patent is clearly duplicative or a flagrant misuse of the patent system, then patent-holder pays all legal fees and a bounty to the good samaritan who challenged their duplicative or inappropriate patent. Likewise, if the challenge is deemed flagrantly inappropriate, the circumstances are reversed.

          That creates an incentive to only file for patent for reasonable things, and creates a cottage industry of people with incentive to scrutinize patents without raising costs to people filing patents responsibly.

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      2. @Junkyard,

        In all actuality, this is a great example of the patent system at work, and with respect to “pass[ing] the initial examination” that you mentioned, we must look to what it means to “pass”, and ridiculousness has nothing to do with it.

        The “ridiculousness” of a patent application has no bearing on the “patentability” of a patent application. I could apply to get a patent on a method, utility, system, etc. so absurd to the common person that no one would ever think of getting a patent on it (e.g. a particular method of swinging on a swing), or so crazy that no one would ever see a market value in it; nevertheless, as long as the patent claims meets the patent eligibility requirements (e.g., there is no prior art and the claims are not obvious, etc.), then the claims in the patent application can be granted.

        So, in short, patent eligibility and patent ridiculousness are not the same.

        Thus, by using the standards that define patent eligibility, your question “If a patent as ridiculous as this one could pass the initial examination, why bother having the initial examination at all?” really lacks merit and, accordingly, cannot be answered without succumbing to a straw man argument. Can you please clarify and rephrase your question differently so it can make sense with respect to patent eligibility standards?

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  4. If I can not afford my life saving drugs due to cost, due to patent, do to the lawyers and the litigation, I will go over seas, to a governance that puts the people first, and therefor does not honor U.S patent law. Gods’ law first, not mans. So yes, I guess the system does work after all.

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    1. So, you’re for Sharia law, eh? Oh, wait, you only want what YOU think is God’s law to be first. Let’s start with stoning adulterers. That should be a popular one. Move on to killing witches and selling unruly daughters into slavery. That should help with unemployment.

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      1. What does this have to do with theocracy or particularly Sharia Law? What he’s saying is clearly that people should come first in any system of law. There’s nothing unreasonable about that, is there?
        Do you lash out at people like this as a regular thing? Or has it just been a particularly bad day?

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        1. “God’s law first not mans'” seems pretty clear that this individual is NOT interested in whats good for people de facto, but is interested in the application of some version of religious law on the assumption it is good for people because it’s “God’s Law”. This is not a good example of governments working in th interets of the people whether we are talking about a patent system or anything else.

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  5. Robert Halloran Thursday, July 10, 2014

    Patent examiners are currently evaluated based on the number of approvals; this removes any interest on checking ‘prior art’ before rubber-stamping the application. This leads to more money for more lawyers: first to weasel-word the application enough to make it sound non-obvious, leading to results like the on-a-swing patent; then for more lawyers to contest it pro and con.

    Kudos to SCOTUS for finally slapping the Patent Court upside the head and making clear that adding “on a computer” to an existing, obvious process does not magically grant eligibility for patent. This will hopefully thin out the flood of NPE entries used primarily for economic extortion against firms actually *producing* goods.

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    1. Dilip Andrade Thursday, July 10, 2014

      Patent Examiners have, as one of their many evaluation criteria, a count of “disposals”. Allowing a case is considered a disposal. So is having the case abandonned. So is having the applicant pay a fee to continue prosecution of the application after issuance of a final office action. So what you say is technically correct, but the full details make it clear that there is no great incentive to allow a case where there is clear prior art.

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      1. Robert Halloran Friday, July 11, 2014

        Dilip, hence my comment about the plethora of lawyers whose job it is to obfuscate the application enough to get past the examiner’s check for non-obviousness, which then leads to the additional lawyers eventually contesting it on just that basis.

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    2. Just injecting realism Friday, July 11, 2014

      Robert, I agree wholly with your second paragraph.

      Your first paragraph, as already mentioned by Dilip, is not actually correct. I would go farther than Dilip did and point out that not only are rejections equivalent to allowances (from a “count” or “disposals” standpoint), but also say that rejections are rather heavily favored/pressured by the SPEs of most units.

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  6. How out of touch could the Obama Administration be to want to appoint such an obvious advocate for the people to be regulated? Sheesh. Do your homework!

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  7. The proliferation of patents has arisen in part because examiners can only expend a given amount of time on each application, while those seeking patents can repeatedly challenge rejections.
    Incorrect. An examiner can spend as much time as he/she wants to spend. However, they only get credit for a certain amount.

    Also, while those seeking patents can repeatedly challenge rejections, for each response, the examiner’s allotment of time for preparing a response gets reset. As such, the examiner can never be backed into the corner with regard to time to respond. Also, it isn’t free for those seeking a patent to repeated challenge a rejection. It’ll cost anywhere between $2K-$5K a challenge — that adds up quickly.

    In the last two decades, the Patent Office has issued a flood of questionable patents like one issued to a child for “swinging on a swing.”
    Anecdotes evidence of a flood. BTW — that patent was filed 14 years ago. You couldn’t come up with a more recent example?

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  8. @Jeff,

    Yet again, your opinions are being challenged with facts here in the comments. If your patent articles are to be taken seriously, you need to provide reasons why your opinions trump the facts.

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