By Donald Zuhn --
Today, the Senate Judiciary Committee heard testimony from David Kappos (at right), the Obama Administration's nominee for Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office. While the hearing was mostly uneventful, Senator Arlen Specter (D-PA) provided an interesting line of questioning when he asked Mr. Kappos to explain how he would balance his new obligations as Director with his old loyalties to IBM. When Mr. Kappos responded by saying that he would recuse himself from matters that specifically involved IBM, Sen. Specter inquired about global decisions Mr. Kappos might make as Director that could ultimately benefit IBM while disadvantaging other applicants. Sen. Specter noted that the Federal Circuit had recently granted a request for an en banc hearing in Tafas v. Dudas, and that the parties had jointly sought a stay "to see what attitude [Mr. Kappos] might have." Depending on Mr. Kappos' "attitude" regarding the case, Sen. Specter (at left) contended that "IBM would be benefitted one way and other companies would be benefitted the other way," and asked Mr. Kappos how he would handle this "more subtle and sophisticated issue." Mr. Kappos 
responded by saying his role, if confirmed as Director, would be to "do[] the right thing for the American people and the United States of America," and like other individuals who had left the private sector for a governmental position, he would "put my previous role behind me and focus on doing the right thing for the United States of America -- in the Tafas case and the Bilski case and everything else on a policy level."
The questioning from other Senators was less challenging. Senate Judiciary Chairman Patrick Leahy (D-VT) (at right) asked Mr. Kappos whether he would work with Congress to advance patent reform. Mr. Kappos replied that securing passage of a patent reform bill was a top priority (albeit one of many "top" priorities). Senator Orrin Hatch (R-UT) provided a nice endorsement of Mr. Kappos' nomination, saying that the nominee was the type of person who could "keep us at the forefront of innovation." Sen. Hatch also told the nominee that he was "very impressed that you're willing to do this."
Senator Jeff Sessions (R-AL) asked Mr. Kappos whether the application backlog and pendency could be reduced with the annual threat of fee diversion. Mr. Kappos informed the Committee that he was opposed to fee diversion, and noted that while the USPTO was "one of the few places where a user community will readily step up and say we don't mind paying whatever it costs," the user community's response will be quite different if fees are diverted (as Patent Docs has reported before, fee diversion has not been a problem for the past few years). Senator Amy Klobuchar (D-MN) told Mr. Kappos that the Committee "believe[s] your nomination is a good thing for this country," and asked him how efficiency and morale could be improved in the USPTO. Mr. Kappos proposed to raise morale by completely remaking the count system, which he said "needs to be fixed." Mr. Kappos stated that "as I understand it, the examining corps hates the count system the way it is," and "the applicant community . . . hates the count system the way it is because it results in dysfunctional behavior." He informed the Committee that Secretary of Commerce Gary Locke had specifically asked him to fix the count system.
All told, Mr. Kappos listed four priorities during the hearing, including advancing the Senate patent reform bill (S. 515), reducing the application backlog, creating a "sustainable, long-term funding model" for the USPTO (which would require passage of S. 515 and its provisions to end fee diversion and allow the Director to set fees), and remaking the count system.
Chairman Leahy concluded the hearing by noting that the record would be held open for one week to allow Committee members to submit additional questions.
A webcast of the hearing can be viewed here, a copy of Mr. Kappos' written testimony can be found here, and Chairman Leahy's statement regarding the hearing can be found here.
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