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.

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Companies: johnson & johnson

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Comments on “Obama To Appoint Pharma Patent Lawyer, Who Has Fought Against Any Patent Reform, To Head Patent Office”

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That One Guy (profile) says:

Makes sense

If you want to have it both ways, being able to claim that you’re ‘for’ patent reform, yet at the same time stop cold any actual patent reform, put in charge someone who would never be interested in any patent reform that didn’t involve a ratcheting up of the current system.

Do that and you can make all the empty ‘promises’ and ‘statements of support’ regarding patent reform as you want, and then, when they get shot down by the person you appointed, you can just turn around with a ‘Well I tried‘.

Anonymous Coward says:

Just like the FCC, huh?

The only way Obama could have done worse is by appointing Intellectual Ventures as head of the patent office. This is just stupid and disheartening at this point. At this point, he’s already sold the Oval Office to the highest bidder, so why do we continue calling this sell-out our president?

Anonymous Coward says:

Re: Re: Just like the FCC, huh?

Yup the benefit of the doubt.
It seems natural for a person so indebted to the tort system lawyers to kill bills limiting these lawsuits. When that is said, I think he actually means it when he calls for reform. But the slave must blindly obey the master.

Reform of surveillance? You get either spanked by blackmail or lobbyists from the industry/army/law enforcement.
Reform of copyright? You lose your partys advantage on donors from your bank called California and the bias from donors in these areas nationwide.
Reform of political funding? Interestingly somewhat plausible. But if it fails, you can be certain that your party will be far from competitive in fund raising for a considerable time. With the possibility of republicans vetoing, that is a stonecold dead mmove.

Anonymous Coward says:

obviously why she didn’t get the job permanently, then.
has anyone actually noticed the pattern with who Obama appoints in these key positions? every single one is on the side of more, stricter patents, more, stricter copyrights, more, stricter laws, more, stricter, punishments! we need to hope that the person who takes his place is a damn site more honest, open and liberal and doesn’t have to keep fucking the people to keep the sponsors happy. if not, start packing people! there’s a real shit storm coming!!

Anonymous Coward says:

Re: Re:

ha ha ha….

“more honest, open and liberal”

These terms seem to be mutually exclusive to being a liberal! I have not met a single… not one single liberal that was intellectually honest! Just because you think your heart is in the right place does not mean that it is!

When you only think with your heart… you have lost your mind!

Pragmatic says:

Re: Re: Re:

“more honest, open and conservative”

These terms seem to be mutually exclusive to being a conservative! I have not met a single… not one single conservative that was intellectually honest! Just because you think your heart is in the right place does not mean that it is!

When you only think with your heart… you have lost your mind!

– a moderate conservative

The fact is, being led by one’s emotions where the issues are concerned is not exclusive to either side of the aisle. Do you really think you’re more logical than the rest of us? Okay, tell me how comfortable you feel saying, “There’s no such thing as the free market because the market isn’t free due to anti-competitive practices by incumbents and the overuse of IPR.”

You were saying?

trollificus (profile) says:

“Only Obama has ever done this sort of thing. All prior occupants of the whitehouse and halls of congress have been pure as the driven snow. This makes it much more difficult to bear, it’s terrible.”

*sigh* You know it’s really sad when Obama supporters have to point to the fact that all other politicians have been (mostly) corrupt to assuage their bitter, bitter disappointment.

We’re too far into his presidency for ‘But…but…BUSH!!”, and Reid and Pelosi have too much power to say ‘But…but…CONGRESS!’. So now, all they’re left with is “Well, historically, he might not be the worst!”. A ringing endorsement indeed.

I knew they (Obama supporters) were in trouble when, faced with the clear fact that for many of his supporters, getting the DEA off the backs of marijuana users was a primary concern, he literally laughed at them. The fact that many of them voted for him again in 2012 was a clear sign he knew he only had to be “better than the Republican candidate” to win.

Only in that roundabout way can we blame the Republicans for the duplicity exhibited by our POTUS.

GEMont (profile) says:

Don't Feed The Lawyers

Ah the wonders of being at the head of the food chain.

Of course Obama “came out surprisingly strongly against patent trolls and in favor of comprehensive patent reform.”

It gave the Obamasists the opportunity to say “I told you so.” again… for a week or two.

It also let the Trolls know that they would have to up the ante and start really pouring extra cash into the Emperor’s coffers via legal bribery channels – lobbyists.

Rather than demand a certain increase of graft – which would let the Trolls know how strongly you were planning to go “against” them – its always better to just take the opposite position publicly (momentarily) and see just how much the other crooks are willing to part with to get you back on track.

This process is better known in Modern American Politics as leadership detouring, and it seldom fails to elicit greater graft than would otherwise be possible from a simple extortion demand.

There never was any actual plan to consider anything even remotely like comprehensive patent reform. That would be counter-productive to the members of the Ownership Society.

Current laws constitute basic Lawyer Welfare.

Lawyers are a primary and essential resource of the Ownership Society and their care and feeding is of great importance.

GEMont (profile) says:

tride and troo

“Never attribute to malice that which is adequately explained by incompetence.”

I thought it was entirely due to the public’s belief in this “truism” that the CIA purposely does at least one really stupid action a day.

My version differs somewhat:

“Never attribute to malice that which is adequately explained by incompetence, unless its a lawyer, politician, or MAFIA enforcer you’re dealing with.”

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