The U.S. Patent Office has a backlog of more than 1.25 million applications. By some estimates, simply clearing those requests could create more than two million American jobs. We talk with USPTO Director David Kappos about the challenges facing his agency and the future of innovation and patents.

Guests

  • David Kappos Director, U.S. Patent and Trademark Office

Transcript

  • 12:06:41

    MR. KOJO NNAMDIFrom WAMU 88.5, at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Innovation in the 20th century or in the 21st century economy. We're joined in studio by David Kappos, director of the United States Patent and Trademark Office. It's been called the biggest job creator you've never heard of. Last year, the PTO issued more than 200,000 patents.

  • 12:07:18

    MR. KOJO NNAMDINo doubt, among them, a lot of bright ideas, technical advancements and, maybe, just maybe, a few technologies that could help fuel big changes in the American economy. The office still faces a huge backlog of applications for patents. By some estimates, clearing that backlog could lead to more than 2 million American jobs. As we said, joining us in studio is David Kappos, director of the U.S. Patent and Trademark Office.

  • 12:07:44

    MR. KOJO NNAMDIHe is also undersecretary of commerce for intellectual property. David Kappos, good to have you aboard.

  • 12:07:50

    MR. DAVID KAPPOSWell, Kojo, thank you very, very much for having me in today.

  • 12:07:53

    NNAMDIAnd we know there are a lot of listeners interested in this issue, so if you want to start calling now, the number is 800-433-8850 with questions or comments for David Kappos. You can send us a tweet, @kojoshow, email to kojo@wamu.org, or simply go to our website, kojoshow.org. Join the conversation there. When Thomas Edison applied for a patent for his light bulb back in 1879, it took two-and-a-half months. If a modern-day Edison filed a patent today, how long would that person likely have to wait?

  • 12:08:27

    KAPPOSWell, Kojo, unfortunately, right now, that modern-day Edison would probably be waiting about 23 months, nearly two years, for a first response from our agency, and about 33 or so months in order to get his patent.

  • 12:08:42

    NNAMDIWhy is that?

  • 12:08:43

    KAPPOSWell, that's too long. First of all, that's much too long. The reason is because we've had a dramatic escalation in patent filings in the U.S. over the last couple of decades, and that's a good thing. But we haven't matched the bandwidth of the agency. We haven't brought enough resources into this agency in order to keep up.

  • 12:09:02

    NNAMDIWhy is there such a huge backlog? Because we haven't brought enough bandwidth into the agency?

  • 12:09:08

    KAPPOSYes. Simply, patent applications are very complex legal documents that take trained, skilled, technically degreed individual scientists and engineers to evaluate them. And a lot of effort goes into it. If you've got half a million applications coming in, like we've got this year, and not quite enough examiners on board to examine them, they just sit in piles.

  • 12:09:33

    NNAMDIWell, we got this question yesterday and didn't have the opportunity to answer it, and I know a lot of our listeners are interested in it. It's a very complex question. What's a patent?

  • 12:09:43

    KAPPOSOkay. That's a great question. So a patent, actually, is -- some people think of it as a right to exclude, although it's not quite exactly that. What it does give you, though, is for a period of time, 20 years from filing, currently and generally speaking, right, it gives you an exclusive right over the idea that you describe to the government and to people of the United States in your patent.

  • 12:10:12

    KAPPOSSo the light bulb, your Edison example, is a great example of a famous invention, the product of human creativity in the sciences and the useful arts, and something that the government then rewards a limited exclusive right to for a limited period of time in exchange for disclosing how that thing is made, how it works, so that humanity can benefit from it for all of time, and other human beings can then build on it and create future great advances.

  • 12:10:42

    NNAMDIWhat's the difference between a patent and a trademark? I trademarked my name. What the heck did I do?

  • 12:10:49

    KAPPOSOkay. Well, we also -- you know, we refer to our agency as the United States Patent and Trademark Office, sometimes even the United States Trademark and Patent Office. We do both patents and trademarks. Trademark, a very different kind of intellectual property, right, from a patent. What a trademark protects is a brand. It protects the goodwill that's been created in some business, in some product, so brands like Coca-Cola is an example.

  • 12:11:16

    KAPPOSYou know, famous world-renowned brands protect their -- themselves with trademarks, which enable them to ensure that nobody else goes and inappropriately copies that brand or that trademark and uses it to pass off other goods and services.

  • 12:11:31

    NNAMDII may have made a mistake. It's my understanding I create no goodwill whatsoever. Last week, the U.S. House of Representatives approved the so-called America Invents Act, a piece legislation that would lead to the biggest change in patent law in over 60 years. What's your view of this law? I know that you've been pushing for many of the reforms that are contained in that law. But you don't like it when people say the system is broken. However, what needed to be fixed?

  • 12:11:59

    KAPPOSWell, this is a very important piece of legislation. It is easily the biggest change in the United States patent laws in over 60 years, dramatically improves our patent system here in the U.S. The legislation is the result of a delicate set of balances, nicely crafted by both Houses of Congress, balancing the needs of the innovation community, independent and individual inventors, small and large companies and, importantly, the interests of the public in having access to products and services.

  • 12:12:35

    KAPPOSLots of work has been done on this legislation. This is by no means perfect. I would not say it's a panacea. It's a result of lots of compromises, but it is on balance, really important, and positive legislation that will enable us at the USPTO to clear that backlog, to take down the time it gets -- it takes to get a patent from that current range of three years or so down to more like 18 to 20 months, which is the ideal period of time and to put Americans to work by enabling innovators to move their ideas into the marketplace much more quickly.

  • 12:13:13

    NNAMDIIndeed, President Obama's State of the Union address laid out a framework for innovation and the American economy, what he called winning the future. The patent office apparently plays directly into this. How so?

  • 12:13:26

    KAPPOSWell, that's exactly right. The USPTO has been referred to, I think, aptly as our country's innovation agency. If you think about invention and its movement from idea into the marketplace, no matter what the invention, no matter what the field, whether it's biotechnology or mousetraps or wheels, gears and sprockets, fishing lures, software, hardware, whatever it is, it always has one first stop.

  • 12:13:51

    KAPPOSAnd that is at the United States Patent and Trademark Office because every American knows that this is the agency that you take your idea to in order to get protection for it, so that you can go and build your business and create jobs and create opportunity in the marketplace.

  • 12:14:10

    NNAMDIThe new law, about which we had a conversation here yesterday, one of the primary aspects of the new law is the change in the patent system from first to invent to first to file. Some of our callers felt it was a distinction without a difference. Would you, please, explain why, in your view, it's important?

  • 12:14:31

    KAPPOSWell, Kojo, I think, actually, your callers who refer to it as a distinction -- rather the difference are actually pretty close to the truth. The new system, which I refer to as first inventor to file, will still require, as it's always been the case in the U.S., ever since Thomas Jefferson had my job way back when the republic was started, it will continue to be required that, to get a patent, you must be an authentic and true inventor, right?

  • 12:14:59

    KAPPOSAnd that is really important. The new system will be much more transparent. It will be simpler. It will be more objective. It will enable inventors to know what their rights are more efficiently and less expensively, and it will enable our agency to operate more effectively.

  • 12:15:16

    NNAMDIOn to the telephones. We will start with Orin (sp?) in Baltimore, Md. Orin, you're on the air. Go ahead, please.

  • 12:15:24

    ORIONHi. It's actually Orion. I'm a physician over at Johns Hopkins, and, I guess, my question -- when I talk with my scientists, colleagues, when I talk with people, even people who run their own machine shop and so forth is, what can citizens, such as them, do to have their voices heard on this matter as the House and Senate reconcile their bills and work out these remaining issues?

  • 12:15:49

    KAPPOSWell, Orion, thanks very much for the question. So the bill has gone through lots of debate over quite a period of years, several terms of Congress. Work was actually started on it about a decade ago now, and it is almost complete. It's passed both the House and the Senate. There's a little bit of reconciliation that's needed now back on the Senate side, and so it's very, very close to the end at this point.

  • 12:16:21

    KAPPOSAnd in terms of having your voice heard, I think, coming on this show is a great thing to do, and we'd love to hear more about specific concerns. But, of course, you know, there's always the opportunity to speak to your elected representatives and let them know.

  • 12:16:36

    NNAMDIIndeed, I think the process of hearings is over. But as the revered House-Senate conference takes place, you may want to get in touch with your own representatives, as David Kappos points out, to make your feelings or your views heard. Thank you very much for your call. You, too, can call us, 800-433-8850. Our guest is David Kappos. He's director of the U.S. Patent and Trademark Office. He's also undersecretary of commerce for intellectual property.

  • 12:17:01

    NNAMDIRight now, the United States creates more patents than any other country in the world, but it's my understanding that could change soon, especially with a concerted push by China to increase its number of patents. How significant is that?

  • 12:17:14

    KAPPOSWell, Kojo, that's a great point. The People's Republic of China, actually, has a strategic IP plan that calls for as many as a million patent filings in that country by, I believe, it's 2015. And, potentially, an agency -- their counterpart to the USPTO -- that could become the largest patent granting authority in the world -- the USPTO is currently the largest patent granting authority in the world.

  • 12:17:41

    KAPPOSI think that China joining the innovation age and championing invention and patent filings is actually okay. And the reason I say that is because it's historically shown that when any people, any country gets on board with innovation and appreciating it and respecting it, they not only respect their own innovations but those coming from other countries, especially, in our case, those coming from the United States of America.

  • 12:18:11

    KAPPOSSo I welcome the Chinese to the party, if you will, and I view it as a big opportunity for American innovators to get the respect for American inventions in China that our inventions deserve as China comes up the curb, if you will, on their patent system.

  • 12:18:29

    NNAMDIBack to the telephone. Here is Tom in Bethesda, Md. Tom, your turn.

  • 12:18:35

    TOMYes. Hi. I'd like to ask the guest what he thinks about software patents and why they're not addressed in the new law because I'm -- there have been several studies showing that software patents in particular have a chilling effect on innovation because of the low cost of developing software and the broad terms that are written into many of the software patents and also the length of time that they are active is, in many cases, longer than the software itself is useful. So I'd like his opinion on how this is affecting innovation in the software industry.

  • 12:19:14

    NNAMDIDavid Kappos?

  • 12:19:15

    KAPPOSWell, Tom, thanks, that's a great question. So here's the way I think about software patents. Software is a medium of expression. It's like a language, right? And I have seen in my career, much of which was spent in the IT industry, many great ideas, many great inventions that were first instantiated, first deployed in the marketplace in hardware, then later deployed in the marketplace in software as processing speeds increased, then finally deployed in the marketplace in firmware coded into the application's specific integrated circuits.

  • 12:19:51

    KAPPOSAnd so what I learned from that experience is that the issue with software patents isn't the medium of expression -- software in this case. It is the quality of the innovation, right? And so what I want to see for the USPTO, and we're working on, it's not a regime in which we say we'll accept patents in certain media of expression, like certain languages.

  • 12:20:12

    KAPPOSLike, it's as if you were going to say we'll accept patents in Spanish, but not in French. That doesn't make any sense to me. What makes sense is accepting patents that have high innovation content. And that's why we've worked hard at the USPTO to put new practices and policies in place that enable our examiners to much more strictly examine patent applications, especially in the software area to make sure, Tom, as you say, that those vague terms are not permitted, that we filter those out.

  • 12:20:42

    KAPPOSAnd we do a good job and only permit patents to come out of our agency that have great innovation in them, whether they describe algorithms that may be implemented in software or not.

  • 12:20:54

    NNAMDISome of the most exciting innovations in the tech world have come from open source platforms and operating systems. What are your thoughts on open source innovations, breakthroughs and disruptive technology that doesn't involve very rigid patents, like the Google Android operating system for mobile phones?

  • 12:21:10

    KAPPOSMm hmm. Yes. Software innovation in the open source area has been wonderful, and it has been a breakthrough business model. And great pieces of software, like the Linux operating system, as an example, have revolutionized much of what we do and are the basis for much of our computing on the Internet. The open source development model is absolutely fantastic.

  • 12:21:35

    KAPPOSMy goal and mission is that all development models for software, open source, mix source, collaborative innovation, you know, closed source proprietary, they should all be able to succeed together. We should have an intellectual property playing field that advantages all models of development, certainly does not discriminate against any model of software development so that the marketplace can decide -- an innovation can decide where each model excels and how they work together.

  • 12:22:05

    NNAMDIGot to take a short break. When we come back, we'll continue this conversation with David Kappos, director of the U.S. Patent and Trademark Office. We'll still take your calls at 800-433-8850. Or you can shoot us an email to kojo@wamu.org, a tweet, @kojoshow. Or simply go to our website, kojoshow.org. Ask a question or make a comment there. I'm Kojo Nnamdi.

  • 12:24:18

    NNAMDIWelcome back. We're talking about updating the U.S. patent system. And our guest is David Kappos, director of the U.S. Patent and Trademark Office. He's also undersecretary of commerce for intellectual property. We're taking your calls at 800-433-8850. On yesterday's show, we spoke to a variety of legal experts and inventors about the America Invents Acts, as I mentioned earlier. One thing that came through was that fairness and the interest of the little guy seems to be in the eye of the beholder.

  • 12:24:48

    NNAMDIOne of our guests argued that the current system hurts the little guy because the backlog of patents and long waits prevents them from getting investor funds. But another guest argued that the move to a so-called first-to-file system could end up making things worse. What say you...

  • 12:25:04

    KAPPOSWell, thanks...

  • 12:25:05

    NNAMDI...about this notion that everybody seems to be in it for the little guy?

  • 12:25:08

    KAPPOSRight. Well, thanks, Kojo. We -- that is an issue -- that set of issues are ones that we're very, very concerned about in the Obama administration, certainly at the USPTO. We put a lot of energy into helping what you refer to as the little guy or the independent inventor community. The independent inventor community comes up with breakthrough ideas. Small business and independent vendors create enormous number of jobs and huge opportunities.

  • 12:25:36

    KAPPOSSo it is mission number one for us to ensure that the agency is doing the best possible job for that part of our constituency. Now, the legislation that we're talking about will address the foremost problem that I hear from independent inventors when I travel all over the country, which is, as you say, Kojo, the long time it takes to get patent protection by moving the U.S. to the simpler system called first inventor to file and by, importantly, enabling us to streamline processes and by also, importantly, making the fees that are paid into the agency available to the agency to use to hire more examiners and to update our IT systems.

  • 12:26:22

    KAPPOSThe legislation, I believe, will produce a breakthrough opportunity for us to dramatically cut those queue times and help, especially, the independent inventor community to get patents to the agency more quickly.

  • 12:26:33

    NNAMDIBefore I get back to the telephones, I'd like to pursue that for a second because you mentioned the fees. The Patent and Trade Office is a self-funding agency. The fees charged for patent applications easily cover the operation cost of the office, or at least they should. But for the past few years, some of the funds from the office have been siphoned off to other parts of the government. What would the new -- how would the new law change that?

  • 12:26:56

    KAPPOSRight. Well, yes. The USPTO is entirely self-funded. We use no taxpayer dollars. We use only the user fees paid into the agency. And we're very unique in that our user community not only does not mind paying those fees, they actually don't even mind paying more fees if they need to so long as all the money stays with the USPTO.

  • 12:27:16

    KAPPOSYes. We have had, unfortunately, a little less than $900 million diverted away from the agency over the years, and that is unfortunate because it's held us back from being able to implement many of the programs that we would like to in order to help the...

  • 12:27:32

    NNAMDIYou don't want to be anybody else's piggybank.

  • 12:27:34

    KAPPOSThat's exactly right. Now, the legislation will certainly help us in that regard. It includes language that was very strong on the Senate side and has become not as strong, but is still somewhat helpful on the House side that will help the USPTO to be able to keep the fees that are paid into the agency and use them for the purpose for which they're paid in and end the tax on innovation.

  • 12:28:04

    KAPPOSNow, the one other thing I'll say is that the administration remains a bit cautious, and I would say somewhat concerned, about the language that came out of the House side because it really does not clearly and unambiguously end the practice of diverting USPTO fees. But by the same token, Kojo, it's clearly a step forward. It's clearly a step in the right direction. And with good execution by the agency and good cooperation with Congress, it can be helpful.

  • 12:28:32

    NNAMDIFor our listeners who are not sure about the specific. The Senate-side bill ensures the PTO access to all of its feeds and ends diversion. The House bill creates a lockbox account that the money is put into. Then a report has to be filed in the form of a spending plan before that money is accessible. And that has to do with Victor in Vienna, Va.'s call. Victor, you're on the air. Go ahead, please.

  • 12:28:58

    VICTORThank you. Yeah, follow up. Since you are self-supporting -- and I just heard one explanation to my question -- how is that hiring is frozen?

  • 12:29:12

    NNAMDIWe got a comment from Keiser on our website, Victor. Keiser says, "I'm a highly trained engineer with great work experience who is interested in a job with a patent office. But when you go to the website, it states that you aren't currently hiring. When do you expect to hire again?" Victor and Keiser would like to know.

  • 12:29:29

    KAPPOSWell, Victor and Keiser, thank you very much. We want you and lots of other great scientists and engineers to join the USPTO team. So here's what's going on. As Kojo has pointed out, the USPTO collects ample fees in order to be able to improve the performance of our agency.

  • 12:29:48

    KAPPOSUnfortunately, when this year's congressional appropriation came out, $85 million more dollars are being taken away from the agency that are being paid in by patent users and trademark users. And as a result of losing that money, we had to stop hiring. Once this legislation completes -- and we certainly hope that it does -- working through Congress and with this fee deal that Kojo has mentioned, we hope to be able to start hiring again.

  • 12:30:18

    KAPPOSSo what I would recommend, Victor and Keiser, is to continue watching the USPTO website. And as soon as we possibly can, hopefully after the legislation is complete, we will begin hiring again. We clearly need many more great examiners, patent examiners at our agency to help with that big backlog.

  • 12:30:37

    NNAMDIAnd, Victor, thank you very much for your call. In that regard -- if you've called, stay on the line. We will get to your calls. If the lines are busy, go to our website, kojoshow.org. In that regard, for many years, government agencies have talked about giving their employees more flexibility in terms of scheduling and in terms of working from home. And every time we talk about telework, everyone cites your office as a model. Explain how it seems to work so well at the PTO.

  • 12:31:05

    KAPPOSWell, Kojo, thank you. That is a great question. Yeah, the USPTO is really the government's model for telework. You know, as a guy who came in from private industry to run this agency, I -- the way I put it is USPTO has commercial-grade telework capability. We're fortunate in that we were forced by necessity to start implementing telework over a decade ago when we ran out of space.

  • 12:31:28

    KAPPOSSo necessity, the mother of invention, forced us to get our act together a long time ago, and we led the federal government ever since. We're also benefited, Kojo, by the fact that our workload at the USPTO is very objective and measurable. Our examiners can go home and work from there. We set them up with great teleworking equipment, laptops, telephone, gear and headsets that enable them to do their job seamlessly from work. And all is very well trouble shot so that the system performs quite well overall.

  • 12:32:03

    KAPPOSIn the workload that they're working on, examining patent and trademark applications is so objective that management knows and employees know exactly where they stand. And the whole system works so well that when we had the famous Snowmageddon snow outage, last year, the USPTO, with our employees working from home, right, those several days, managed to work at nearly nominal rates.

  • 12:32:28

    KAPPOSIn other words, we got nearly as much work done with the government closed, as we had the previous year, those same days, examining many, many thousands of patent and trademark application. That's because of telework.

  • 12:32:39

    NNAMDIBecause in the final analysis, if you can count, you know how many applications an individual has closed out. On to the telephones again. This time to Linda in Falls Church. Linda, you're on the air. Go ahead, please.

  • 12:32:52

    LINDAYes. Thank you for taking my call. Mr. Kappos, here is a question that takes me back 49 years to the day yesterday. I am a co-author of a biological patent, and I tried to sell it to different pharmaceutical companies. And, now, I noticed that a similar product is on the market. I tried to have it tracked down by an attorney in the Commonwealth of Massachusetts and couldn't find anything. On a piece of paper here, I have a patent number. And it's...

  • 12:33:34

    NNAMDIBefore you give the patent number, this was a patent that you filed in 1962, Linda?

  • 12:33:39

    LINDARight.

  • 12:33:40

    NNAMDIAnd what are you exactly trying to find out now, 49 years later?

  • 12:33:44

    LINDAForty-nine years later, it is not on record. Is it erased after the 20 years or -- I couldn't find anything about the patent. But, again, I noticed that a similar product is on the market right now.

  • 12:34:02

    NNAMDIAnd you do have the patent number with you? I won't ask you to reveal the patent number...

  • 12:34:05

    LINDASure.

  • 12:34:06

    NNAMDI...on the air. But if you're interested after Mr. Kappos answers your question, I will put you on hold, so that someone can take your information and pass it on to Mr. Kappos and his people before they leave. Would that work for you?

  • 12:34:17

    LINDAThat would work for me. Thank you so much. I -- yeah, that'd work.

  • 12:34:21

    NNAMDIWhat do you think conceivably has happened to Linda's patent?

  • 12:34:24

    KAPPOSWell, so we want to help -- first of all, we want to help Linda. This should be an easy question to answer. We, the USPTO, keeps electronically and publishes on our website the full text and the drawings for every single patent going back many, many years, far longer back than the 1960s. So that patent, we should certainly have in our files, either in our electronic files or depending on what might have happened to it, potentially, in our paper files. We would love to be able to supply a copy of it.

  • 12:35:02

    KAPPOSAll patents are subject to publication and are electronically stored and should be full-text searchable on the USPTO website. So, Linda, we'll help you offline with this.

  • 12:35:16

    NNAMDIAnd, Linda, good luck to you with that. As I said, we're putting you on hold, and someone will be taking your information and passing it on. Once a team of experts or a lone inventor comes up with a patentable idea, a whole slew of people get involved, angel investors who can make or break the process. What does an angel investor do?

  • 12:35:35

    KAPPOSWell, angel investors frequently play the role of helping to move ideas from the invention stage to the innovation stage to the marketplace stage. What happens very frequently, Kojo, is that a great idea needs to be built. The inventor has the idea, can describe it, file a patent application, but then to take it forward and actually build a prototype, significant amounts of money are required. And that's where angel investors come in.

  • 12:36:01

    KAPPOSThey frequently will put up modest amounts of capital, usually sub a million dollars, to help enable the inventor to build a prototype and determine whether the idea is actually workable.

  • 12:36:15

    NNAMDIWell, in addition to angel investors, you've got competitors who can bury an investor or try to bury an investor in red tape or try to beat them to the market. You have lawyers who can make or break the process of filing and defending the patent. But one controversial flare in the current system is so-called patent trolls, companies that buy up large numbers of patent, then pursue legal action against big companies. How does that work?

  • 12:36:40

    KAPPOSRight. Well, I like to refer to that group as patent assertion entities or non-practicing entities. I believe that folks who -- and companies that buy and assert patents are essentially market-making mechanisms. Their market clears similar to brokers and other marketplaces. And what's happening is, because of some ambiguities and patents that exist in the marketplace right now, it creates an opportunity for market-makers to come in and buy and sell and try and make money in that arbitrage. I think it's actually okay.

  • 12:37:22

    KAPPOSIt's a part of any marketplace. I believe it's our job at the USPTO to do a better job of examining patent applications with high quality. And the more we do that, the more the marketplace will settle down. And high-value patents will fetch high value as they should, and low-value patents will get sorted out quickly. And we won't have these kinds of ambiguities.

  • 12:37:45

    NNAMDII guess the nickname patent trolls is intended to have a negative connotation. Clearly, it does because that makes them sound pretty scary. Here is Neil in Silver Spring, Md. Neil, you're on the air. Go ahead, please.

  • 12:37:58

    NEILHey, Kojo. Thank you for taking my call again. I'll try -- I have three points I'd like to -- I'll be very...

  • 12:38:04

    NNAMDITry to make them one at a time.

  • 12:38:06

    NEILOkay. Historical context, the savings and loan crisis, the collapse of the financial crisis had started two-and-a-half years ago. The destruction of our community banking system -- there used to be community banks. You'd be hard pressed to find one in any community where all those -- the crisis and the destruction of our community banking system all started in the halls of Congress with special major corporation and banking interests being and...

  • 12:38:45

    NNAMDIAnd you believe that we're going down this same road again with the America Invents Act? You believe that this is corporations that are foisting this act on an unsuspecting public? And where do you think it is likely to lead, Neil?

  • 12:38:57

    NEILAbsolutely. Absolutely. Kojo, I'm sending you an email this very moment. Have your listeners Google IBM files of patent for exporting jobs overseas. Mister...

  • 12:39:17

    NNAMDIOkay. If in the event that they don't have the opportunity to Google that, can you tell me as briefly as possible, Neil, where do you think this America Invents Act will lead us?

  • 12:39:29

    NEILIt's designed to streamline shipping jobs overseas. That's what IBM, Intel, General Electric...

  • 12:39:39

    NNAMDIHow will it -- how do you think it will accomplish that?

  • 12:39:44

    NEILWell, first of all, the Chinese -- the chief intellectual property judge of the People's Republic of China wrote an article, which I'd be happy to share with you, tracing these patent legislations, saying it would weaken our patent system and make it easier to infringe and more difficult for patent owners to enforce patents. That's...

  • 12:40:16

    NNAMDIOkay. Allow me to have David Kappos respond to that specific charge...

  • 12:40:21

    KAPPOSOkay.

  • 12:40:21

    NNAMDI...that it will weaken our patent system and make it easier for people to infringe.

  • 12:40:27

    KAPPOSWell, thanks, Neil, for the point. You know, I actually think that the opposite is true. The America Invents Act will strengthen the U.S. patent system. It will make it much more objective. It will enable us to streamline processing. It will put in place the ability for the agency and the public to come in and help us correct those mistakes that we make because, after all, trying to examine going on a half a million patent applications a year, it's inevitable that some mistakes are going to get made.

  • 12:40:59

    KAPPOSThe new law will return America to the gold standard of patent systems. And, I believe, actually, it will give the U.S. the world's first truly 21st century patent system that is very pro-inventor, very pro-collaboration and very pro-innovation.

  • 12:41:21

    NNAMDIOne more quick point on the China issue. We got an email from David in Oakton, Va. It said, "Mr. Kappos said two things, both seemingly positive, but which imply a potentially serious problem. One, China's emergence as a patenting authority is a good thing because the Chinese will start honoring other's patents as a result.

  • 12:41:41

    NNAMDI"Two, our software patenting policy will be highly conservative. The apparent problem here is the China software patenting policy probably won't be conservative at all. How does Mr. Kappos expect that issue to play out?"

  • 12:41:56

    KAPPOSWell, you know, what we've seen so far from the software patenting practices that have come out of most other countries -- in fact, all other countries that I can think of -- is they are actually quite conservative already. Their examination standards are pretty tough on software-related patent. So I actually don't see any sort of major change in the area of software patenting.

  • 12:42:24

    KAPPOSI think what has needed to change and what we have changed at the USPTO is actually enforcing the current laws and examining on a tough standard the software patents that come in here at the USPTO.

  • 12:42:40

    NNAMDIGot to take a short break. If you have called, stay on the line. We'll try to get to your call. If the lines are busy, go to our website, kojoshow.org. Ask a question or make a comment there for David Kappos, director of the U.S. Patent and Trademark Office. You can also send email to kojo@wamu.org, or send us a tweet, @kojoshow. I'm Kojo Nnamdi.

  • 12:44:51

    NNAMDIWelcome back. Our guest is David Kappos, director of the U.S. Patent and Trademark Office. He is also undersecretary of Commerce for Intellectual Property. We talked a lot about how people on both sides of the argument over the America Invents Law claim to be smeeking for the independent inventor or the little guy. So, I guess, we should mention that the Patent Office, it's my understanding, has a variety of resources for small inventors that our listeners may not be aware of. Could you talk a little bit about that?

  • 12:45:20

    KAPPOSWell, right, Kojo. I'd be happy to address that the -- we'd -- we have a whole range of resources specifically to focus for the independent inventor. We have a toll-free independent inventor assistance line that provides real live USPTO professionals who will answer questions and help independent investors. We train our examiners to give them extra resources and time in order to work directly with independent inventors who choose to file their own patent and trademark applications.

  • 12:45:56

    KAPPOSAnd, by the way, our examiners love working directly with independent inventors, so we give them specific training on that. We also have put in place a special office at the USPTO and elevated that position to an associate commissioner level position entirely focused on innovations and focused on the independent inventor community. We have conferences that we hosted the USPTO. We have outreach that goes to many, many communities across the country.

  • 12:46:25

    KAPPOSMost recently, we even inaugurated what we believe is the first in world, pro bono patent project working with IP Law Associations and bar associations across the country we're putting in place. And we started in Minneapolis, Minn. with the very first one, just earlier this month, a program that enables any independent inventor who does not otherwise have the financial resources to get pro bono legal assistance to prepare and file a patent application.

  • 12:46:56

    NNAMDII think that answers the question we got via email from Eric in Falls Church. "What is the USPTO doing to work with small businesses and entrepreneurs who cannot afford to spend thousands of dollars on legal fees to help them protect patents and trademarks?" So we can move on to this from Nick in Reston. "Why has the Patent Office set up a new system where the rich applicants can get their patents two years faster than the rest of us can? Paying a $5,000 extra fee gives you this accelerated service."

  • 12:47:25

    KAPPOSOkay. Obviously, somebody, Nick, who is following the USPTO closely, well, the new legislation, one of the provisions in it that is very important is the provision that's going to create a new micro-entity category, which will enable us to give a 75 percent discount to very, very small entities, like individuals or small companies with just a few employees. That 75 percent discount will be applied to our new fast track or Track 1 Patent Application option, in which we will examine an application within three months and get it granted within a year, right?

  • 12:48:02

    KAPPOSSo the big guys will have to pay that big fee that you're talking about, Nick, of $4,000-plus. The little guys will get a 75 percent discount off of that fee. And I think that is clearly the right thing to do in order to help the independent inventor community to be able to afford, to get really fast patent protection with the USPTO.

  • 12:48:22

    NNAMDIHere, now, is Andy in Herndon, Va. Andy, you're on the air. Go ahead please.

  • 12:48:27

    ANDYThanks for taking my call, Kojo. About five years ago, your office moved to its new location in Alexandria in one of the largest consolidations of government staff in our nation's history. And I just wanted to ask how have your new facilities changed your operations? And, also, I'd like to comment that I think your new facilities are a great example of federal architecture in our nation. And I'll take my response offline. Thank you.

  • 12:48:57

    NNAMDIThank you for your call, Andy. Go right ahead.

  • 12:48:59

    KAPPOSOh, okay. Well, Andy, thank you for mentioning the USPTO's facility in Alexandria. My perspective on it is that it is a nice campus. It is a very professional workplace. It enables our employees to come in to the office in the morning to get busy on the people's work, to do what it is we are assigned to do at the USPTO and have a comfortable and safe and reasonable place to do it.

  • 12:49:27

    KAPPOSAnd I get constant positive comments on the facility. I think it's just fine. It's got, you know, health care and child care and all the things that you would expect on a kind of a corporate campus of the 21st century.

  • 12:49:43

    NNAMDIIn the international arena, the United States and the Office of Patent and Trademarks have long insisted on strong protections for copyright holders. But the U.S. is considering whether to participate in an international treaty for the blind. The sticking point, as I understand it, for people with sight impairments to access certain copyrighted information is that they often end up breaking copyrights.

  • 12:50:05

    NNAMDIAnd this treaty calls for an exception for people with disabilities. The Obama administration has seemed to waver a little bit on the issue. Have you made any specific recommendations to the president on the issue?

  • 12:50:17

    KAPPOSYes, we have. And, Kojo, this is something that I am enormously proud of for the president and for our administration. The Obama administration has led the world in articulating that we will be the nation that has strong enforcement and championing of strong intellectual property laws and respect for them. But we will also be the nation that recognizes appropriate exceptions and limitations.

  • 12:50:44

    KAPPOSAnd the visually impaired issue is exactly an example of where exceptions and limitations make sense. We have led in Geneva, in the World Intellectual Property Organization where these treaty negotiations take place, in raising this issue, in articulating the need for new norms in various forms that enable visually impaired people all over the world to have access to works of authorship.

  • 12:51:14

    KAPPOSWe have had some significant success with those discussions, as recently as last week, at negotiations taking place in Geneva. The United States, again, led, partnering very effectively with some of our international counterparts from countries like Brazil, some countries in Africa and even the European Union in further advancing those discussions.

  • 12:51:37

    KAPPOSWe're going to keep going on that, working effectively with U.S. copyright and other intellectual property interests and with our U.S. visually impaired community, as well as the world visually impaired community. And we are going to get appropriate norms put in place that ensure that visually impaired people have access to works of authorship.

  • 12:52:00

    NNAMDIIn a recent article in the Huffington Post by James Love, he says, "It will most likely come down to what Kappos does. If he supports the treaty, the administration will probably end up supporting it." What I hear you saying right now is that you are having discussions that will conceivably, presumably, probably end up with you supporting the treaty.

  • 12:52:22

    KAPPOSWell, I don't know that I have so much power. I think that, as in any international negotiation, there are various steps that have to be taken. And many countries -- developing countries and developed countries -- have to be brought together. It's a process. It takes time, and it takes acclimation. It takes getting folks comfortable with the new approach, and that's what we're working our way through right now.

  • 12:52:48

    NNAMDITrying to make sure that people with disabilities have access without violating copyright. Here now is Kenneth in Rockville, Md. Kenneth, you're on the air. Go ahead, please.

  • 12:53:00

    KENNETHYes. Thank you, Kojo. It's a great pleasure to be able to talk to Director Kappos. I wanted to express my great frustration as a layperson trying to get a trademark for a nonprofit organization. I did my due diligence. I did a name search on the USPTO website, which was -- which is great, by the way -- paid my fee, which was several hundreds of dollars. The examiner rejected my application. And the name was -- I won't give you the full name, but it started at U.S. Chamber of something.

  • 12:53:35

    KENNETHThey had a problem with the word U.S., believe it or not, and a problem with the word chamber. And -- but it was written with such legalese that it was like trying to understand the terms and conditions of my credit card. And I've been since inundated with emails from lawyers from all over the country kindly offering their services. So my question is why can't the wording be put in non-legalese language so that the layperson can really understand what the examiner is trying to say, so I don't actually have to hire a lawyer? And then the second question is, can I actually...

  • 12:54:17

    NNAMDIWell, before -- allow me to have David Kappos answer one question at a time.

  • 12:54:22

    KAPPOSOkay. Well, great. Well, Kenneth, thank you, and thank you for expressing that frustration. So it is our mission and our job at the USPTO to communicate with you in plain English, no question about it. If we -- well, obviously, we have a problem in this case. This is a perfect example of an opportunity for you to get on the phone with our folks in our trademark office. We have the world's foremost, very best trademark office at the USPTO, true absolute professionals there.

  • 12:54:55

    KAPPOSWhat I would really suggest is call up your examiner, call up our trademark assistance line, and you will get someone who'll be able to take you through what's going on in plain English and sort of cut the legalese out of the equation.

  • 12:55:10

    NNAMDIAnd, Kenneth, good luck to you. On now to Louis in Washington, D.C. Louis, you're on the air. Go ahead, please.

  • 12:55:17

    LOUISHello. I've enjoyed this very much, and I just wanted to remind you of the story that some people know. And I'm sure your guest probably knows the story of the -- when -- the war of 1812, when they -- when the British came and they burned the White House. They were burning everything they could possibly burn.

  • 12:55:36

    LOUISAnd whoever -- some guy in charge of the patent office at the time stood out there and talked the British out of burning the patent office, comparing it to the library of ancient Egypt, to tell them how important the things were in that office. And the British didn't burn the patent office. The guy talked them out of it. I love the story. And you can easily verify the story, but I...

  • 12:56:03

    NNAMDIThe story is pretty well-known. But thank you for reminding us of it. Care to comment on that, David Kappos?

  • 12:56:09

    KAPPOSWell, it's absolutely true. And it's a testament to the views of our Founding Fathers -- and mothers -- that they put a clause in the Constitution of the United States to protect inventions and creativity, that president Washington, our very first president, asked then Secretary of State Thomas Jefferson to be the first commissioner of the Patent Office, that he brought in James Madison to help him, and that, later on, one of the three most prominent buildings in Washington, D.C., in the mid-19th century was the United States Patent Office, along with the White House and the Congress building.

  • 12:56:49

    KAPPOSThat building is now the building that houses the Smithsonian Museums of art and the portrait gallery, I believe, right there in the Chinatown area.

  • 12:56:59

    NNAMDIAnd this final complicated question from Bruce. "Does the new law -- or is it new regulations -- limit the patentability of biological organisms that have evolved without the help of inventors?"

  • 12:57:11

    KAPPOSWell, thanks, Bruce. The new law does not contain any expressed new regulations in that regard. It does carry on some regulations that are currently in the law regarding medical-related innovations and infringement of them, but, really, no new changes in that regard. There are some cases -- there's case law currently pending in the courts that could impact that issue, but really nothing in the legislation.

  • 12:57:46

    NNAMDIOur guest is David Kappos, director of the U.S. Patent and Trademark Office. He's also undersecretary of commerce for intellectual property. The America Invents law is not yet in its final stage. It is not yet an act. That will happen after the House and the Senate confer and decide what to do. So it's entirely possible that we'll be asking you to come back in the future.

  • 12:58:07

    KAPPOSWell, Kojo, thank you very much. I'd love to come back.

  • 12:58:10

    NNAMDIAnd thank you all for listening. I'm Kojo Nnamdi.

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