Chief of Staff for the United States Patent and Trademark Office
Boston Patent Law Association Remarks
September 16, 2014
Remarks as Prepared for Delivery
Thank you, Josh [Dalton, Boston Patent Law Association] for that warm introduction, and thanks to the Boston Patent Law Association for hosting this event. It's fantastic to be back here in Boston, although it's tough to believe that it's already been 17 years since Josh and I graduated from law school just across the river.
I am so pleased to have the opportunity to talk to you today about what's happening at the PTO. Before I do, though, let me give you a little background and context.
I was assigned to my first patent case on my very first day of work as an attorney. As a patent litigator for 16 years, based in Silicon Valley, I have represented both patent holders and accused infringers. I have argued that some patents were invalid, unenforceable, and worthless, while others were valid, enforceable, and tremendously valuable.
I spent my first two years of practice trying to prove my client's priority of invention, which is becoming a lost art. I lived through the 25% rule, the Texas Digital era of claim construction by dictionary, and the heyday of the teaching/suggestion/motivation test for obviousness.
The major and mini-trends in patent and IP law over the past 17 years are legion, and would fill many events like this one. But, sitting at the PTO and continuing my work at what I call the "intersection of technology, law and politics" on a larger scale, the most significant change during my IP career has not been in the law. The most significant change has been the tremendous increase in the visibility and importance of IP. IP is no longer a topic reserved for highly technical or specialized scientific and legal circles. IP now permeates all fields of interest, all layers of society, and all parts of our daily lives.
The discussion about patents and patent policy has become the talk of CEO's and the mainstream press, not just technologists and the patent bar. Public Radio's This American Life produced an hour-long segment on patent litigation, and the so-called "Smartphone patent wars" were chronicled on the front pages of the Wall Street Journal and the New York Times.
Looking over the 17 years since I became a lawyer, the number of utility patents issued in a year has gone from about 110,000 in 1997 to over 275,000 last year. The number of patent lawsuits has tripled, from roughly 2,000 in 1997 to over 6,000 in 2013.
The increased prevalence of IP has gone hand in hand with an acceleration in technological advancements. I doubt anyone in this room would disagree that the state of the art in virtually every technology has been transformed since 1997. Just as one example, I brought my entire music collection to Boston on a device that fits in the palm of one hand, and my computer in the form of a tablet in my other hand. In 1997, I would have had to lug a steamer trunk of CDs, cassettes, a hard drive and peripherals to accomplish the same thing.
There's little doubt that IP, and the industries it supports, have a significant impact on the economy. A 2012 Department of Commerce report found that industries that most intensively use patent or trademark protection, or are primarily responsible for the creation and production of copyrighted materials, account for almost 30% of American jobs and over 60% of merchandise exports.
And so, we in the IP community, whether you're in private practice, in-house, in a trade association or advocacy group, or in the government, have a greater responsibility than ever before to ensure that the IP system is balanced and effective. We need to ensure that the patent and copyright systems meet their constitutional mandate to "promote the progress of science and useful arts," and that the IP system as a whole fosters innovation.
Which is why we at the PTO, the Department of Commerce, and the Obama Administration, are working aggressively to make certain that America's IP system is balanced, keeps up with technological evolution, and is poised to sustain an economy built to last throughout the 21st century.
It's been a year since I left Silicon Valley to come to Washington to join the President's team and take my appointment as Chief of Staff at the United States Patent and Trademark Office. Suffice it to say, this has been a very intense year -- and a stark reminder to me as a Californian that snow and oppressive humidity are real things and not just something you see on TV.
So what, exactly, is a Chief of Staff?
Journalist John Baldoni describes the chief of staff, across organizations, as being the leader's "champion," "confidante," "administrator," and "organizer." Others have called the Chief of Staff a "gatekeeper"-although, as a fan of the movie "Ghostbusters," I tend to prefer "keymaster."
As Chief of Staff, I am the principal advisor to the head of the PTO, Deputy Director Michelle Lee, helping run our 12,000 employee, \As Chief of Staff, I am the principal advisor to the head of the PTO, Deputy Director Michelle Lee, helping run our 12,000 employee, $3 billion agency, and managing our policy coordination and external outreach and engagement. billion agency, and managing our policy coordination and external outreach and engagement.
At its core, my job is to help ensure the USPTO is achieving its mission- fostering innovation, competitiveness, and economic growth, domestically and abroad by delivering quality and timely examination of patent and trademark applications, guiding domestic and international IP policy, and delivering IP information and education worldwide, with a highly skilled, diverse workforce (not just patents and trademarks but all forms of IP including copyrights and trade secrets).
To do so, I work hand-in-hand with the PTO's leadership team and colleagues at the White House, the Department of Commerce, and across the federal government, as well as the innovation community globally, like those of you here today.
Improving the Patent System in the U.S. and Globally
During my tenure thus far, patents have been a primary focus at the PTO, both in terms of the agency's operations and policy questions about whether and how to reform our patent and patent enforcement system.
While we all have a stake in the patent system, since the PTO issues U.S. patents, how the PTO examines patent applications -- and whether and how it ultimately rejects the application or issues a patent -- is necessarily at the center of that system.
Since 2009, the PTO has been particularly focused on reducing the backlog of unexamined utility patent applications and the pendency of applications, both to first action and to final disposition. A shorter pendency means that applicants who are granted patents can move their products or services to market, create more jobs, and help grow the economy more quickly.
Propelled by the significant expansion of the agency's national workforce, our backlog of unexamined applications is down nearly 20% since 2009, from more than 750,000 applications to fewer than 620,000. We've achieved that reduction despite a consistent increase in our patent application workload to nearly 600,000 applications filed in fiscal year 2014, which ends on September 30, compared with barely more than 450,000 in 2009. We're working to reduce our inventory of unexamined applications even further to allow us to achieve optimal pendency by fiscal year 2019.
We've also significantly reduced our Request for Continuing Examination backlog, from a peak of over 110,000 in early 2013 now to about 60,000.
In terms of processing applications, our first action pendency has been reduced to under 19 months, down from approximately 26 months in 2009. Our average total pendency has fallen under 28 months from 35 months in 2009. We plan to reduce first action pendency to less than a year, and total pendency to 21 months, by fiscal year 2018.
These accomplishments happened at the same time that the PTO was working to complete the 21 provisions of the America Invents Act for which it was responsible. I am pleased to report that the PTO successfully implemented on time each of those provisions, including the transition to first-inventor-to-file, the PTO's new fee setting authority, and the establishment of three new post-grant review proceedings.
But, even as we at the PTO work hard to make our Patents operation as efficient as possible, it's essential to take a broader look at the patent system to ensure that its benefits continue to outweigh the costs.
The Constitution provides for a patent system that recognizes the power of providing an incentive to inventors of exclusive rights for a limited time. As President Lincoln, the only President who ever held a patent, said: "The patent system added the fuel of interest to the fire of genius."
But that constitutional provision is not self-executing. It gives Congress power, but it doesn't tell us what patent law should look like. The patent system we have is the result of decisions made by Congress, the Administration and the courts, each attempting to strike the right balance between rewarding the risks that inventors and their backers take, and protecting consumers and competitors from misuse of the patent-holder's exclusive rights.
Although much of the attention recently has been given to legislative efforts at patent reform, we can, and should, ensure that the patent system is balanced and effective through multiple ways-legislatively through Congressional action, judicially through rulings from the courts, administratively by actions taken by the PTO and other agencies, and of course with input and action from all of you.
I mentioned earlier that the number of patent lawsuits has skyrocketed since the late 1990s. By 2011, there were not only many more suits but the cost of defense against such a suit had jumped to an average of 2.5 million dollars and has only increased since (See AIPLA Report of the Economic Survey 2013, at 34.).
The proportion of suits filed against competitors had declined, and an increasing percentage of the suits were being brought by non-practicing entities, including patent assertion entities whose sole business is enforcing patent rights, and that do not necessarily use the patented invention to make any product or provide any service.
Against that backdrop, in 2011, President Obama signed into law the America Invents Act.
Nothing is real in Washington till you give it an acronym, and so this law of course became known as the AIA.
The AIA effected a sea change in aspects of U.S. patent law, including, as I mentioned earlier, aligning the U.S. with the rest of the world by awarding patents to the inventor who is the first to file a patent application instead of giving priority to the first to invent.
The law also empowered the PTO to keep the fees it collects from patent and trademark applicants and trial and appeal board petitioners. As a solely fee-funded agency that receives no taxpayer dollars, the PTO is dependent upon those fees for our operations.
And, as I said, the AIA also established new post-grant review proceedings intended to streamline patent disputes, making them more efficient and less expensive.
Running up to, and even after, passage of the AIA, more and more, questions were being asked about the state of our patent system, and whether it had kept up with the changes in technology and business of the past several decades.
Fewer than 18 months after the AIA passed, during a Google+ fireside hangout (speaking of technological advances), President Obama was asked about the impact on high tech startups of demand letters and lawsuits by patent assertion entities, or so-called "patent trolls." He responded that the AIA "made progress" on "some" issues but that, and I quote, "our efforts at patent reform are only about halfway to where we need to go."
Going the rest of the way requires changing the economics of patent litigation to address the problem of abusive patent litigation. While not the only challenge facing our patent system, addressing this issue is imperative.
Right now, a complaint doesn't require much detail, so it's relatively inexpensive for a plaintiff to file one and initiate a lawsuit. For the accused infringer, though, the costs of litigation are immediate and significant. I don't have to tell this audience how expensive it can be to have a lawyer review a complaint and the patents-in-suit, and do a preliminary analysis of possible defenses and damages.
And let's not forget discovery. A defendant will have to review and produce documents relating to allegedly infringing products or services, and additional documentation for the damages portion of the case. That's to say nothing of the cost and distraction of depositions, and we haven't even started talking about expert witnesses yet.
And as you know if you've stayed up for days preparing for trial, working with witnesses and eating several thousand calories in red licorice and mini-candy bars (telling yourself that the ones with peanuts are a healthy dinner), it costs even more to take a case to trial.
The average "big" case, with over $25 million at issue, would cost $5.5 million to defend. And the small one, with less than $1 million at issue? $700,000. Which means that the cost of defense can amount to 70% or more of the exposure. It's no mystery why many are pressured to settle even when the case is weak on the merits.
Going to trial isn't costless for the plaintiff, either, and operating company plaintiffs risk facing patent counterclaims, disrupting relationships with suppliers and partners, and triggering the mutually assured destruction of legal department budgets that discovery can become.
But patent assertion entities, in particular, usually have much lower costs and many fewer strategic barriers to suit. Some build their business around the idea that they can send hundreds, even thousands, of vague demand letters to companies that will do the math and pay for a license just to avoid litigation expenses.
Ultimately, though, the key question in evaluating how to improve the patent system is not whether the patent holder is an operating entity, a patent assertion entity, or another type of non-practicing entity. Nor is the issue the identity or type of the accused infringer. The question is whether the system prevents to the extent possible abusive behavior and facilitates innovation.
The recent reform discussion has focused on numerous proposals, ranging from requiring more specificity in pleadings to limitations on discovery, greater transparency of patent ownership, and more.
Now, reasonable people differ about the effects that different proposals for reform might have on the patent system as a whole, or even whether non-judicial measures are required at all.
Certainly, on the judicial front, there have been important recent developments. In the Supreme Court's last term, the Court
- made it easier for district courts to award attorney's fees to prevailing parties in patent cases in the Octane and Highmark cases,
- adopted a higher standard for claim clarity in Nautilus, and
- laid the groundwork for aggressive Section 101 challenges to certain categories of patents (such as business method and software patents) in CLS Bank.
For my part, I think that it's possible for those in the legislative and executive branches to take positive steps to correct the imbalance in the system while still providing inventors with the incentive to invent, and patent owners with the ability to enforce their patent rights appropriately.
As I said before, fixing this imbalance is just one part of the puzzle. But it's essential, because the last thing we need as our economy gains traction again is for researchers, inventors, and small businesses to be distracted from innovation by litigation.
Building a patent system that remains effective and balanced as technology continues to transform at a rapid pace demands that we look at the system as a whole over the long term. It also demands that we not stand still and wait in the hopes of reaching a legislative solution.
That's why, at the PTO, we're redoubling our commitment to issue the best quality patents possible. We're leveraging the PTO's implementation of several Administrative actions announced by the White House "designed to protect innovators from frivolous litigation," "strengthen our patent system[,] and foster innovation."
We're working to increase the level of scrutiny given to proposed patent claims that may be too broad-to optimize the quality of patents, particularly software patents. We're providing targeted training for patent examiners, including four new training modules on how best to examine functional claims under section 112(f). We've launched a pilot program that allows applicants to use glossaries in patent specifications to define terms, leaving no doubt as to their meaning to the examiner, and potential future adversaries, judges and juries down the road.
We're making it easier for companies, experts and the general public to provide more relevant prior art to the PTO. We're refining our existing third-party prior art submission program, exploring other ways for the public to submit prior art (particularly non-patent literature), and updating our guidance and training for examiners to more effectively use crowd-sourced prior art. By encouraging the innovation community to uncover and submit hard-to-find prior art, we're actively enlisting the innovation community in our pursuit of quality.
Patent examiners must be skilled in determining whether a particular application should be granted based on the state of the art. So we're expanding our Patent Examiner Technical Training Program, which engages experts in industry and academia in updating examiners on technical developments, the state of the art, and emerging trends, whether in person at our headquarters in Virginia or at our satellite offices, or from their own location via webinar. This is another area where you can have a direct impact on the quality of patents we issue.
Speaking of satellite offices, our offices in Detroit and Denver are now open in permanent locations, with both patent examiners and Patent Trial & Appeal Board (or PTAB) judges on the ground. Our Silicon Valley and Dallas offices will be moving from temporary locations to permanent ones next year, when examiners from those deep talent pools will join the dozens of PTAB judges already hard at work in those regions. While our Alexandria headquarters is closer to Boston than any of the satellite offices, you and your clients will benefit from our improved ability to recruit and retain the best examiners and judges across the country.
We're also helping to make sure that under-resourced independent inventors, start-ups and small businesses have access to the PTO by providing dedicated resources to pro se applicants who lack legal representation, and working with our partners nationwide to expand the AIA pro bono program. Assistance from the PTO or from a patent attorney can be critical in preparing the necessary documents to help ensure that, if an invention is patentable, a quality patent is issued as quickly as possible.
If you're a patent prosecutor, I strongly encourage you to lend your skills to inventors who need your help through the Massachusetts pro bono program, run by the BPLA and Volunteer Lawyers for the Arts (or VLA). You can learn more about signing up to take a pro bono case on the website of VLA's sponsor, the Arts and Business Council.
And we're not only expanding access to the PTO. We're recognizing the profound impact patents can have on the world. The PTO's Patents for Humanity prize rewards innovators who deploy game-changing technologies to meet global humanitarian challenges in medicine, nutrition, sanitation, household energy, and living standards. Winners can expedite select proceedings at the PTO and receive public recognition of their work. If you have a patented invention that's making a difference globally, I encourage you to apply for this year's competition before the new deadline of October 31.
Another major focus at the PTO is making the necessary investments to make certain that our 21st century agency actually has up-to-date IT systems. Our next generation systems include our comprehensive Patents End to End project, which is designed to streamline patent prosecution from application to issuance, enhancing the way examiners view documents, search for prior art, take notes, and complete tasks. By providing our examiners with enhanced examination tools, we are helping to improve the speed and quality of their work.
You'll also be pleased to know that our Website Next Generation project is well under way, and we aim to have a new and much more user-friendly website up and running in the coming months.
We collect a lot of data during the patent examination process - and will be able to collect a lot more using Patents End to End. We want to take the lessons we learn from the data and feed them back into the earliest stages of examination in order to improve quality from the first touch of an application. Over time, we plan to analyze data at every operational level, not just to increase quality but to strategically deploy resources and manage the agency even more effectively.
But data are not only for the agency's internal use. They are the fuel that powers today's economy. By some accounts, open data can help unlock \But data are not only for the agency's internal use. They are the fuel that powers today's economy. By some accounts, open data can help unlock \*-5 trillion annually across several economic sectors. Making the PTO's data more widely accessible to the innovation community not only responds to public demand for our information but also supports the Administration's goal of transparency and aligns with Secretary Penny Pritzker's goal of making the Department of Commerce "America's Data Agency." Making our data accessible will also lead to greater understanding of the competitive landscape and empower third-party innovators to create new, useful products and services utilizing that data.-5 trillion annually across several economic sectors. Making the PTO's data more widely accessible to the innovation community not only responds to public demand for our information but also supports the Administration's goal of transparency and aligns with Secretary Penny Pritzker's goal of making the Department of Commerce "America's Data Agency." Making our data accessible will also lead to greater understanding of the competitive landscape and empower third-party innovators to create new, useful products and services utilizing that data.
Our efforts to serve you, our stakeholders, don't stop at our borders.
Our recently created Office of International Patent Cooperation is working closely with other patent offices globally to create and expand automated tools that enable examiners to share prior art, making it more efficient to obtain patent protection worldwide.
We are also nearing completion of implementing the Cooperative Patent Classification system, jointly developed by the PTO and the European Patent Office, which enables examiners and patent system users worldwide to conduct more focused and efficient prior art searches.
Another key part of our international strategy is our IP attaché program. We have attaches posted in embassies in eight countries, to promote U.S. IP policy internationally, to help secure appropriate IP provisions in international agreements and in host country laws, and to encourage appropriate IP protection and enforcement by our trading partners.
Importantly, our job is not done when the patent issues.
The validity of an issued patent can be challenged through a PTAB administrative patent trial. These proceedings are faster, more efficient and less expensive than District Court litigation.
Since September of 2012, the number of petition filings has grown from zero to over 2000 as of last week. We initially predicted that PTAB would receive, roughly, about 400 to 500 new filings per year. PTAB is now on track to receive filings of approximately 1600-1900 per year, over 200 percent more than predicted. If the PTAB were a federal District Court, it would be in the top three District Courts, and potentially number #1, in the number of patent case filings.
So, beyond the volume, what's happening with PTAB? Let's look at some more statistics. In Fiscal Year 2014, which will end in two weeks, the rate of institution on post-grant review petitions has been approximately 74% for both Inter Partes Review and Covered Business Method patent proceedings.
Looking at the 237 Inter Partes Review petitions instituted and terminated as of September 4, of the 3344 claims at issue, 30% were found unpatentable, 18% were cancelled or disclaimed, and 52% remained patentable. Of those that remained patentable, while many were the subject of a settlement before a final written decision, the PTAB found 25% to have overcome all instituted patentability challenges. This means that PTAB affirmatively found that roughly 13% of all claims at issue survived review.
Following a nationwide PTAB listening tour in April and May of this year, the PTO posted a Request for Comments about various aspects of trial operations. The deadline for written comments has been extended to October 16 so, if you're planning to provide input on topics ranging from the appropriate claim construction to amendment practice, please be sure to get those in. You can send comments to TrialsRFC2014@uspto.gov.
As a marker of the value of these proceedings, the Court of Appeals for the Federal Circuit recently overturned a district court's failure to grant a stay in favor of a PTAB proceeding. The court cited the value in PTAB's determining whether the patent was valid in advance of a district court opinion.
As we strive to ensure that the patent system works for innovators -- for those who hold patents and those who do not, and for those who are asserting infringement and those who are accused of it - as well as for the public as a whole, there is no silver bullet, no single step by Congress, the courts or the PTO that will itself bring the system into perfect alignment or keep it there. But I am confident that all of us working together can and will keep the system effective and balanced, and a force for innovation.
IP Beyond Patents: Trademarks
Now I'm going to talk a bit about other forms of IP besides patents: trademarks, copyright, and trade secrets.
IP transformations in recent decades are not limited only to patents. Particularly with the development of the Internet and the expansion of advertising and distribution pathways globally, branding and - importantly -- trademark protection of a brand is critical.
Thankfully, filing a trademark application is easier than ever, with revolutionary improvements at the PTO and in trademark offices around the world to enable electronic filing and harmonize filing requirements.
In the past year, the number of trademark classes covered by newly filed applications increased 5%, continuing a trend across the decades. Since 1990, new application filings have increased 240%.
All the while, we've maintained target pendency, with first actions coming out roughly 3 months after filing, and disposals less than one year after filing.
Today, 99% of new trademark applications in the U.S. are filed electronically, making the process not only easier but cheaper, both for applicants and the PTO.
With these improvements, we've proposed to reduce certain trademark fees where applicants agree to file and communicate with the PTO electronically. We've also begun a major project to revamp and improve our IT systems to better support our trademark operations and our stakeholders.
IP Beyond Patents: Copyright
Beyond patents and trademarks, many of the same questions about IP and its impact on business and society were being asked of the copyright system. No form of IP has been more impacted by technology than copyright. Of course, copyright has always adapted to technological change, from the development of the printing press, through radio and television, and now the Internet.
Recent technological changes have transformed the ways in which consumers of creative works read, view and listen to them. New technologies have also made it easier to create and, in many cases, copy these works.
Today, with our colleagues across the Administration, in the Copyright Office and on Capitol Hill, we are assessing whether the current balance of rights, exceptions and responsibilities is still working for creators, rights holders, service providers and consumers. While some argue that copyright protection and the free flow of information are inextricably at odds - that copyright enforcement will diminish the Internet's information-disseminating power, or that policies promoting the free flow of information will lead to the downfall of copyright, we do not hold such a pessimistic view.
Last summer, the Department of Commerce released a green paper on "Copyright Policy, Creativity & Innovation in the Digital Economy," which was the most comprehensive analysis of digital copyright policy issued by any Administration since 1995.
The PTO took the lead on drafting the Green Paper, which analyzed a broad range of online copyright issues and recommended further actions related to updating the balance of rights and exceptions, improving enforcement tools to combat online infringement and promote the growth of legitimate services, and realizing the potential of the Internet as a marketplace for copyrighted works and as a vehicle for streamlining licensing.
Since then, the PTO, along with the National Telecommunications & Information Administration (NTIA), has hosted numerous meetings and roundtables in order to gather public input on key issues discussed in the Green Paper, such as the legal status of remixes, the first sale doctrine in the digital environment, and proper calibration of statutory damages in the contexts of individual file-sharers and secondary liability for mass online services. We also gathered input on possible voluntary measures aimed at improving the day-to-day operation of the "notice and takedown system" (which allows copyright owners to notify online services of infringing content and have it taken down).
We hope to complete our work on these matters in early 2015. Our efforts will help ensure a meaningful copyright system that continues to provide the necessary incentives for creative expression while preserving technological innovation.
IP Beyond Patents: Trade Secrets
Finally, with regard to trade secrets, U.S. businesses increasingly rely on trade secrets protection, sometimes as an alternative to patents, both in the U.S. and abroad.
Both houses of Congress are also looking at ensuring that business can effectively enforce these rights and it is possible that legislation on this topic could pass before the end of the year.
The bills that have been introduced would amend the Economic Espionage Act of 1996 to create a new private right of action to guard against trade secret theft in the United States and seeks to provide some uniformity across the states. That move alone would provide some needed additional certainty for companies.
Many IP issues have enjoyed bi-partisan support from Congress in recent years resulting in enacted legislation such as the AIA, and we'll be watching closely to see if a consensus emerges on trade secret legislation.
Separate from legislation, we at the PTO work both domestically and internationally to ensure protection of trade secrets. Domestically, we work with the International Trade Administration by including discussion of the importance of trade secret protection in "STOP Fakes" road shows and IP awareness campaigns for U.S. businesses.
Internationally, we include trade secret protection and enforcement components in the technical assistance programs we conduct for government and other leaders globally.
In addition, we are planning a public symposium in the coming months on trade secret protection, focusing on the commercialization of trade secrets, the intersection of patents and trade secrets, and issues in civil litigation. Please stay tuned for details and make plans to participate.
Becoming an Attorney
Since this is a crowd made up mostly of lawyers, I'd like to reflect briefly on being an attorney, particularly an IP attorney.
While my role as Chief of Staff is not a legal one, my background and perspective as an attorney comes into play daily. I became an attorney, even though I didn't know a single lawyer before I went to law school, because I knew that there is a system, a set of institutions and rules, that helps order our society. I also knew that there is a difference between making things happen and having things happen to you. And I knew that my better understanding the system would give me not only the power to pursue my own course but also the ability to help empower others.
I know that many of you share that same view. The commitment of the legal community to take action beyond itself, a commitment lived out every day by the BPLA, provides a critical opportunity for attorneys to make a broader impact beyond achieving good results for their paying clients.
While I have the opportunity, I also want to speak briefly to any law students and junior lawyers in the audience who are interested in IP but have doubts or have been dissuaded since they do not have a degree in a technical field. While a technical degree is required to be a member of the patent bar, IP litigators as well as trademark and copyright practitioners do not need technical training. Many of the most successful patent litigators, including some in this room, have degrees in the social sciences or humanities. And that's a good thing.
Just as IP pervades our society and helps drive our economy, the IP legal community should accommodate the talents of interested, committed attorneys, regardless of their college degree. And, remember, members of juries and judges (unless they're PTAB judges) are unlikely to have a technical background at all, let alone one directly relevant to a particular lawsuit.
A good IP lawyer needs to understand not only the technical issues in a case but also how to explain those issues to those with little or no technical knowledge or background. So, if you are a quick study and can work with colleagues and experts to get up to speed on the technical issues, and have good lawyering skills, don't give up your IP aspirations. As a political science major who has long been fascinated by technology and its impact on the world, I'm glad I didn't.
Lessons from DC - Taking Your Seat at the Table
Ultimately, the key to building a stronger, more consistent, and more nimble 21st century IP system requires the engagement of people who will live and breathe the consequences day by day-IP practitioners, the broader business and legal community, all of you here.
That engagement, that conversation with all who have a stake in the IP system, is a priority for the PTO and the Administration. It's a conversation that helps identify and define problems and potential solutions. It's a conversation that started long before I arrived, and it's a conversation that will continue well into the future.
Before I came to DC, I thought that "having a seat at the table" was a metaphor rooted in some historical practice. But I've learned that in conference rooms throughout Washington, there actually is a table, and that having a seat there means that you're part of the conversation among those who will influence the decisions that get made.
At the same time, while there are seats at the table, there are just as many seats not at the table, lining the walls of the room. And if you're in one of those seats, against the wall, you are most definitely not "at the table."
Among those in the government, there is an unwritten protocol about which of us gets to sit at the table at any particular meeting. Some know to sit against the wall even if there are empty seats at the table. But you, as a private citizen individually or through an association of people, can literally have a seat at the table.
I make this distinction not because I spend a lot of time thinking about seating arrangements (which my wife forbade after our wedding), but because it's a helpful illustration of what engagement in this process looks like-because there is a difference between commenting on the process from the outside and being a part of it.
And I bring this up because there are voices that are in that room - perhaps even in this room -- that aren't at the table, that have deep expertise when it comes to IP and innovation, and the ramifications of each on the real world.
So to each of you I'd say, be a part of this process and join us at the table. Taking that seat requires effort and engagement. But, whether you engage by responding formally to a Request for Comments or Federal Register Notice, participating in one of our many topical roundtables across the country, or relaying your views more informally to us and other policymakers, your participation matters. We and our colleagues across the government are listening.
Conclusion
A lesson I've taken from my experience thus far in government is that nothing is automatic about innovation, or the laws governing innovation. (There's not even a consensus, inside or outside of government, about what innovation means, but that's the subject of another speech.)
What we have today is the result of choices we have made about how to best foster innovation, including striking the right balance between rewarding inventors and creators, and enabling the next generation.
And as the pace of technological change accelerates, we have to revisit old choices and make new ones, to make certain that "the next big thing" isn't governed by a patent system that was designed for the electronic word processor I brought to college my freshman year, or a copyright system of the boom box and VCR era that doesn't account for the amazing new pathways that technology has blazed for creating and disseminating creative works.
I left my home in Silicon Valley to come to Washington, at least for a time, because I believed - and still believe -- this is an "all hands on deck moment" for innovation and IP in this country. The issues are too important, the timing too critical, and the impact too great.
The conviction that anyone, from any station in life, can be an inventor or creator, and make a living - or even a fortune - from their invention or creation runs deep in our American spirit and, beyond our borders, to many around the world.
Ensuring that law and policy are aligned with that spirit, that Americans are given equal opportunity to invent and create, and that our system of justice will support them, is my conviction as an American and my commitment as a public servant.
Now you don't have to change jobs or move across the country as I did. But if we're going to navigate through the crowded and sometimes confusing intersection of technology, law, and politics to a better IP system, it's going to take all of us, sitting around the table, working together.
Thank you very much.
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