This article may contain personal views and opinion from the author.
The trouble is that regardless of the mess that the patent system is in, David Kappos has done a good job as the head of the USPTO. It's important to keep in mind that Kappos has only held the position since 2009, so for all intents and purposes, Kappos inherited one of the most difficult tasks around in
In his relatively short time as the head of the USPTO, Kappos made some very important changes: he boosted the number of patent examiners, and worked with Stack Exchange for help in crowd-sourcing prior art on patent applications. Both have been helpful in working through the insane amount of patents filed, and in working through the huge backlog of patent applications.
Kappos also got the America Invents Act pushed through Congress last year. The AIA does a number of things to help make the USPTO better, but the main feature, which is somewhat controversial, is that it will change the patent system in the US from a "first-to-invent" system to a "first-to-file" system, starting with patents filed after March 16, 2013. This will undoubtedly make patent lawsuits and similar patent filings easier to work through because it is easier to show who filed an application first than it is to show who actually invented the thing first.
The AIA will also attempt to get patent trolls under control by instituting new rules stating that non-practicing entities (NPEs) will have to file one lawsuit per defendant. This would mean that patent trolls would have to file individual patents for each defendant rather than lumping everyone together under one lawsuit. No one is quite sure how this will ultimately play out, but the hope is that not only will the cost of filing lawsuits become prohibitive for patent trolls, but that more lawsuits would present more opportunities for a patent to be invalidated.
Unfortunately, for all the good he has done, Kappos has also repeatedly ignored a few main issues that many point to as problems with the USPTO. It's all well and good that the USPTO can review patent applications faster, but if it is using the same old criteria in those reviews, it doesn't help all that much. Firstly, patents can be filed and approved without a working prototype, which means that a company can get a patent for a product that never makes it to market, or comes to market in a very different form. In fact, the new provisions in the AIA could make this even worse, because now you just need to be the first to file the patent, not the first to actually make a product.
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Lastly, and most importantly, Kappos has confused the speed of innovation that we're currently seeing with a working patent system. Just six days ago, Kappos gave a speech called "An Examination of Software Patents" in which he repeatedly took issue with anyone who called the patent system "broken" (as we have on more than one occasion). Kappos did admit that "the history of software patents is not a perfect one, although things are improving." He pointed directly to the smartphone patent wars and to the fact that "over 80 percent, the courts have construed the software patents at issue as valid" and "those few decisions appealed to the Federal Circuit are affirmed 95 percent of the time" as being proof the system works.
The issue we take with that idea is that even if we were to agree that the patent system "works", that doesn't mean it's the best it can be, and it doesn't mean that there aren't some aspects of the process that are fundamentally broken. Sure, patents may be marked as valid and held up to appeal in the courts, but that ignores the myriad patent infringement lawsuits that are taking place, or the existence of patent trolls, which are big problems.
Perhaps Kappos could have been the guy to keep pushing forward and making the USPTO better, he has certainly done good things so far in his time, but regardless, he will step down as Director of the USPTO in January. Kappos hasn't made the moves that we may have wanted, but he has done some things to improve the USPTO. He certainly could have done more, but given the mess he inherited, he didn't do a terrible job, especially given the speed at which government moves, and the fact that his major contribution, the AIA, hasn't fully gone into effect.
It is not yet official, but it is assumed that the Deputy Director of the USPTO, Teresa Stanek Rea, will take over as Director of the USPTO. In his speech last week, Kappos said that those who call the system "broken" should "move beyond flippant rhetoric and instead engage in thoughtful discussion". Well, we think we've done exactly that. Kappos made strides, but left some big issues unattended. We can only hope that Ms. Rea heeds our concerns.