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Summary of the Kappos Confirmation Hearing

by Brian Fletcher on July 29, 2009

The U.S. Senate Committee on the Judiciary conducted a nomination hearing on July 29, 2009 from 10:00 a.m. to 11:14 a.m. for David J. Kappos to be Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office.  Beverly Baldwin Martin (to be United States Circuit Judge for the Eleventh Circuit) and Jeffrey L. Viken (to be United States District Judge for the District of South Dakota) also appeared before the Committee.

Here are some of the Kappos highlights:

  • Kappos stated that he is familiar with all of the constituencies of the PTO and vowed to serve all of their interests.  He expressed appreciation for all of the employees of the PTO.
  • Kappos admitted that an important mission is advancing innovation in these trying economic times.
  • Of course, he stressed that PTO reform is a big issue, especially solving the backlog of pending patent applications.  Somewhat lower on the list appeared to be patent reform legislation, but he was careful not to offend Senators Leahy and Hatch.
  • Senator Franken asked about IP counterfeiting in the entertainment industry, e.g., piracy of movies in China.  Kappos gave polite answers.  Apparently, Stuart Smalley isn’t interested in the patent system.
  • Kappos hates fee diversion and believes the entire patent community feels the same (in other breaking news, scientists discover water in the Atlantic Ocean).  He would like to have the ability to set fees as Director.
  • Senator Specter had a good question about expediting applications directed to helping the environment (green/clean tech).  Applicants formerly could use a petition to make special to expedite examination, but this category went away when the PTO started the accelerated examination program (the same happened with the anti-terrorism-related inventions).  Kappos stated that he would like to do more to expedite applications that would help the environment but would provide more details to the Committee in writing.

Note to Mr. Kappos:  please restore the original categories for petitions to make special so applicants won’t have to trudge through the claim-limiting and estoppel-producing process that is accelerated examination.  Is that too much to ask to help applicants who want to help the environment and keep crazy people from blowing us up?

  • Kappos reassured the senators that his career at IBM would not create conflicts as PTO Director (“my job is to watch out for the U.S., not IBM”).
  • Senator Klobuchar asked about improving efficiency at the PTO.  Kappos replied that “many things need to be done” and that a “major morale issue” is the count system.  Kappos vowed to work with the unions to re-make the count system (“priority 1 of several priority 1s”).  He has support from Commerce Secretary Locke.
  • Besides giving the Director the ability to set fees, Kappos also wants to “refashion the fee system.”  This was said in view of the decrease in application and maintenance fees that the PTO is experiencing.  Such a system would look at the relationship between fees and the work being done (can you say EPO-like excess claim fees?).

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