A Legislative Legacy: 'Mr. Kappos, We're from the Government and We're Here to Help, So Tell Us How'

7 Pages Posted: 4 Sep 2013

See all articles by Christal A. Sheppard

Christal A. Sheppard

University of Nebraska - College of Law

Date Written: January 16, 2013


Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office David J. Kappos was sworn into service in August 2009 at a time of an unprecedented confluence of challenges for the United States Patent and Trademark Office (USPTO). The country was in the midst of a recession and economic downturn that negatively affected the revenues of the user fee funded USPTO; Congress was signaling that passage of a broad patent reform bill was imminent; the USPTO had significant infrastructure, particularly technological, problems; uncertainty about full retention of user fees paid to the USPTO was an ongoing concern; and the user community was unhappy with the office regarding recent USPTO procedural decisions, patent quality, and the ever growing backlog of patent applications awaiting examination.

In additional to those challenges, Kappos took office during a time when political partisanship and acrimony were at an all-time high and becoming only more contentious and more divided every successive year of Kappos’ tenure. This was the political environment that Kappos started in and had to traverse during his 3 years and 7 months as Under Secretary and Director.

Despite all of these obstacles, sixteen pieces of intellectual property related legislation were signed into law during Director Kappos’ tenure. While some commentators have dubbed the 112th Congress the 'Do Nothing Congress', clearly nothing could be further from fact in regards to patent policy and the USPTO. More legislation was introduced and passed in support of the USPTO during Kappos’ term than at any other time in recent memory. Many of these new laws were major pieces of legislation that have had, and will continue to have, profound effects on the USPTO, inventors, businesses, and the national economy. These achievements include: The Foreign and Economic Espionage Penalty Enhancement Act; The Patent Law Treaties Implementation Act; The Trademark Technical and Conforming Amendment Act; The Indian Arts and Crafts Amendments Act; The United States Patent and Trademark Office Supplemental Appropriations Act; The America COMPETES Re-Authorization Act; The Leahy-Smith America Invents Act; and The Leahy-Smith America Invents Technical Correction Act.

Such a result was unthinkable at the August 7, 2009 confirmation of David Kappos, a business executive with no Administration or Capitol Hill experience. Yet -- with some missteps but many more successes -- Mr. Smith came to Washington and secured a brighter future for the USPTO and innovation, not just in the United States but worldwide.

Suggested Citation

Sheppard, Christal A., A Legislative Legacy: 'Mr. Kappos, We're from the Government and We're Here to Help, So Tell Us How' (January 16, 2013). Yale Journal of Law & Technology, 2013, Patently-O, 2013, Available at SSRN: https://ssrn.com/abstract=2320079

Christal A. Sheppard (Contact Author)

University of Nebraska - College of Law ( email )

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