Continued Chaos in Obama Administration Patent Policy

Washington - White House #2President Obama has reportedly decided against nominating Johnson & Johnson executive Philip Johnson in the face of political pressure from the hi-tech industry and Members of Congress, including Senator Charles Schumer (D-NY), as reported by The Wall Street Journal and GigaOm (“White House pulls plug on controversial Patent Office nominee after tech sector backlash”).

The proposed nomination, floated as a trial balloon last month, and its fate illustrate the rift between the biotech and pharma industry, who rely on patent exclusivity to provide the return on investment necessary to bring new drugs to market, and the IT industry, who are more concerned with the threat of so-called “patent trolls.”  Mr. Johnson was known to oppose troll legislation that passed the House last fall and stalled in the Senate this spring (purportedly as the result of pressure from trial lawyers who feared the fee-shifting provisions in the bill would provide precedent for such provisions to spread from patent litigation to other lawsuits).

There has been speculation about the fate of Michelle Lee, the current interim Deputy Director, but if the President was going to nominate her it would seem he would have done so by now.

As the result of the President’s decision not to nominate Mr. Johnson, the Office remains without a Director (for about 18 months and counting).  Because the time remaining on the President’s term continues to diminish, the likelihood that a quality nominee would be willing to take on PTO leadership without sufficient time to make a difference is becoming less and less.  As the current subject matter eligibility Guidance shows, the Office needs a Director but the chances it will actually get one are becoming smaller and smaller.