White House poised to name patent reform opponent as new head of Patent Office

Patent Office

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.

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