Obama To Appoint Pharma Patent Lawyer, Who Has Fought Against Any Patent Reform, To Head Patent Office
from the because-of-course dept
Late last year, as the White House still hadn’t found a successor to David Kappos to run the US Patent and Trademark Office (USPTO), the head of the Silicon Valley USPTO office, Michelle Lee (a former Google patent lawyer) was appointed the interim director — freaking out a bunch of patent maximalists, who like to argue (sometimes in our comments) that it’s all a plot to undermine the patent system from the inside. Lee actually gave a great speech at Stanford last week, in which she laid out many of her views that are hardly anti-patent, but which at least recognize that there are other keys to innovation beyond patents. Basically, she presents herself as a moderate, recognizing that there are important nuances here:
As many of you know, I?m a longtime user of the patent system. I?ve been a scientist in a laboratory. I?ve represented inventors and innovative businesses, patent plaintiffs, and patent licensors. I am now the head of the agency charged with examining and issuing patents.
That said, I?ve also been on the other side of countless demand letters and lawsuits from patent holders, and have spent a good part of my career representing patent defendants and licensees?including against so-called ?patent trolls.? In fact, I?ve even argued on behalf of clients that some patents should be invalidated.
Now, I wouldn?t call myself ?anti-patent,? nor would I call myself ?pro-patent,? whatever those labels mean. But let me be clear: I am, without reservation, ?pro-patent system.?
What do I mean by “pro-patent system”? It means that I believe that a strong patent system is essential to fostering the innovation that drives our economy. I recognize that our patent system is not something that exists in the state of nature, but is the result of policy decisions made by Congress and the Courts that weigh the costs of patent exclusivity against its benefits. We are constantly reexamining those policy decisions, to make sure the benefits continue to outweigh the costs.
I believe that, for the most part, the benefits do outweigh the costs, but we need to be clear about what those benefits and costs are, and about the realities underlying innovation today. Patents are not the only drivers of innovation. The first entity to bring a product to market has a first-mover advantage that provides an incentive to innovate on its own, even if no patents are ever sought or granted. Some firms opt for an open source model, where they benefit from the network effects of the widespread adoption of a technology they developed. We also know that reputation and branding?with or without trademark protections?play a large role in facilitating innovation. And, of course, there are a large number of innovations protected by trade secrets or by copyrights, not by patents.
And yet, patents still play a critical role in promoting innovation. Patent exclusivity?that is, the right of a patent owner to exclude others from using the patented invention?provides a unique route for inventions to find their way to the marketplace. Even with a patent, an inventor requires access to capital, developing a prototype, finding channels of distribution, and more before he?or increasingly, she?can get it to the market. Exclusivity protects the competitive position of a new entrant to the marketplace, which in turn attracts investment. And that plays an essential role in giving inventors and investors the confidence to take the necessary risks to launch products and start businesses.
There’s a lot more in there that’s worth reading. I can’t recall ever seeing a head of the patent office open to even recognizing that patents are not the be-all and end-all of innovation. I can’t recall ever seeing a head of the patent office even willing to admit that there could be costs to the patent system that need to be weighed against the benefits. For the most part, they’ve tended to just want to expand the patent system on the assumptions that “patent = good; more patents = better.” So this kind of speech was actually both surprising and refreshing.
And, of course, just days later, it appears that President Obama is poised to appoint a long-time pharma industry patent-maximalist who has spent years fighting against patent reform, to take over as the director of the USPTO. One can hope that, just as Lee didn’t turn out to be a total patent hater, but rather a moderate who was trying to find a middle ground, that the same will be true with Phil Johnson, the former executive from pharma giant Johnson and Johnson — but I have my doubts.
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.?
Last year, President Obama came out surprisingly strongly against patent trolls and in favor of comprehensive patent reform. Of course, after lots of negotiations on reform proposals, a combination of trial lawyers and big pharma — from where Johnson came — stepped in to kill the whole process dead. That certainly does not bode well for patent reform under the likely next director of the USPTO.