Potential Names For Obama IP Team Swirl; WTO IP Chief “Imminent”

By Liza Porteus Viana for Intellectual Property Watch and William New
Changes in several key international agencies and governments will bring a cadre of new faces to positions that address intellectual property policy, and some potential names for those spots have been circulating in recent weeks.

The naming of the new chief of the World Trade Organization IP Division is “imminent,” according to sources close to the process. But the WTO is remaining tight-lipped until the details have been worked out, which might take a few weeks. The acting head of the IP Division, Hannu Wager, is not seeking the permanent post, according to sources.

The World Intellectual Property Organization is still in the process of deciding upon a new chief economist and a new head of “global issues,” such as climate change or food security, an informed source said. [Editor’s note: also at WIPO, the director general will shortly invite governments to nominate candidates for deputy director general positions, to be finalised during 2009.]

As US President Barack Obama began his first weeks in office in late January, many IP-related positions also remain unfilled. But with economic stimulus, the closing of Guantanamo Bay and pending confirmations taking centre stage right now, it is unlikely some of these posts will be filled quickly.

US Commerce Department

The highest position – and most likely to be filled first – is that of Commerce Department secretary (which oversees the US Patent and Trademark Office, among other things). Former Energy secretary and current New Mexico Governor Bill Richardson was tapped for the post, but later dropped out amid an investigation into some of his state dealings. There are several names floating around, but John Thompson appears to be the top candidate. Thompson is chairman and CEO of California-based software security company Symantec, which is a leading member of the Coalition for Patent Fairness. Numerous sources have told Intellectual Property Watch that Thompson may be the leading contender, and his name is being welcomed by many, including Silicon Valley (California) lawmakers, Representatives Zoe Lofgren and Anna Eshoo.

Thompson had talks with the Obama transition team, but so far, no formal word as to whether he has been officially asked. At one inauguration party on 20 January, Thompson told National Journal’s Daily Dose that, if chosen, he would be honoured to serve.

“Clearly, we need to get the financial engine running – but we also have to make sure that in that process we create as many jobs as possible – that we put Americans back to work,” he said. “No industry in this country has done a better job of putting people to work – of creating more jobs – than the tech sector has.”

Another name floated is William Daley, a Chicagoan (like Obama) and who served as Commerce secretary under President Clinton. He has said, though, that the department needs a bit of an overhaul to stay relevant.

USPTO Director

John Doll is the acting head of the US Patent and Trademark Office (USPTO) until Obama names a replacement for Jon Dudas who left this month. Q. Todd Dickinson, who had the job under Clinton and is the current executive director of the American Intellectual Property Law Association, is among the contenders, as is David Kappos, IBM’s assistant general counsel for patent law, who helped design the patent-sharing “Eco-Patent Commons” with Sony, Pitney Bowes and Nokia. Shanna Winters, chief counsel to Rep. Howard Berman, a California Democrat and former head of the House Judiciary Committee’s Subcommittee on Courts, the Internet and Intellectual Property, was also thought to be in the running.

At USPTO, Raymond T. Chen was tapped in December as agency solicitor general. As a non-political appointee, Chen is expected to stay on for Obama’s administration. The solicitor general’s primary responsibility is to defend decisions of the USPTO director, Board of Patent Appeals and Interferences, Trademark Trial and Appeal Board, and examiners in patent and trademark cases.

IP “Tsar”

The IP “tsar,” or IP enforcement coordinator, is a new position created by the Pro-IP Act, signed into law by former President Bush late last year, and will focus on enforcement. The executive-level nominee must be confirmed by the Senate and will be housed in the Office of the President. Industry sources say Shira Perlmutter and Victoria Espinel are among the top candidates.

Perlmutter, an Obama campaign donor, is a music industry lobbyist and intellectual property lawyer at the International Federation for the Phonographic Industry. She has also worked for Time Warner, was a key negotiator for the US government in the 1996 WIPO Internet treaties, and was a consultant to WIPO on copyright and electronic commerce.

Espinel, a law professor at George Mason University in Virginia and former chief policy advisor to the United States Trade Representative (USTR) on intellectual property and trade issues. Espinel would not comment to Intellectual Property Watch on the IP tsar job but she’s believed to be a top contender.

Other names floated: Hal Ponder, director of government relations for the American Federation of Musicians; RIAA lobbyist/ex-Clinton aide Michele Ballantyne; NBC Universal government relations chief Alec French; and Jennifer Duck, chief counsel to California Democratic Sen. Dianne Feinstein.

Some industry players may run into some problems with Obama’s new lobbying rules, which say anyone working in his administration cannot have lobbied the agency in which they work for two years prior to their appointment.

The Computer & Communications Industry Association is calling on the administration to appoint people to Commerce and USPTO who can bring reform and encourage innovation, and thinks the next USPTO chief should be more than a patent lawyer. As for the IP tsar position, CCIA wants someone who is “a visionary, as well as a manager and a diplomat,” said CCIA President Ed Black. “PTO can be important to making innovation work, but it needs to be connected to broader thinking about innovation and concerned with results, not just churning out patents.”

US Trade Representative

Former Dallas, Texas Mayor Ron Kirk has been chosen as the next USTR. Well-known in the tech sector for this work on the Clinton administration’s internet tax coalition that studied the possible effects of local and international taxation and tariffs on the internet, Kirk is “an enormously able person who has great political experience,” said Emery Simon, counsellor at the Business Software Alliance The US Chamber of Commerce said Kirk’s appointment and his “appreciation for IP is a welcome sign for innovators and workers in our creative sectors.” Rights holder groups also praised his appointment.

Kirk will be dealing with the advancement of the Anti-Counterfeiting Trade Agreement (ACTA) and other trade deals, enforcement, and making sure those countries seen as not living up to their international IP obligations are on the USTR annual Special 301 list of countries to watch.

FCC Chief

Obama is expected to name venture capitalist and former Federal Communications Commission Legal Counsel Julius Genachowski to head the FCC. The FCC chief will have to deal with the push for internet neutrality, which calls for equal access to the internet for all Americans, among other issues. Current Chairman Kevin Martin’s FCC has argued there is no need for federal legislation mandating Net neutrality, since the agency already has principles. Genachowski, who served as Obama’s tech adviser during the campaign, agrees with the president better broadband rollout is essential for internet access.

The news of Genachowski’s impending nomination brought resoundingly positive response from the technology community and other corners. Genachowski, who crafted Obama’s technology and innovation plan, “understands the importance of open networks and a regulatory environment that promotes innovation and competition to a robust democracy and a health economy,” said Public Knowledge President Gigi Sohn.

CCIA’s Ed Black said “the challenges and opportunities confronting the next chairman are neither partisan nor ideological, but it will take the policy, political and business acumen he has acquired in his many roles to strike the right balance between regulation and free-market deference.”

Other Movers and Shakers

Over at the Justice Department, Neil MacBride, former vice president for anti-piracy and general counsel of the Business Software Alliance has been appointed associate deputy attorney general. He will oversee policy and legislative offices and advise the attorney general on criminal justice and intellectual property issues. He formerly worked on IP issues as counsel on the Senate Judiciary Committee and chief counsel to former Democratic Sen. Joseph Biden of Delaware.

Recording Industry Association of America lawyer Thomas Perrelli has been nominated to be associate attorney general. Perrelli has represented the industry in copyright suits and digital piracy litigation, including those arising from the Digital Millennium Copyright Act.

Sen. Patrick Leahy, a Vermont Democrat, is still chairman of the Senate Judiciary Committee and has authored many pieces of IP-related legislation. Aaron Cooper, Leahy’s chief counsel, is working on IP issues for the chairman. The House Judiciary Subcommittee on Courts, Internet, and Intellectual Property will no longer deal with many IP issues; instead, they will be taken up by the full Judiciary committee, headed by Rep. John Conyers, a Michigan Democrat.

Rep. Rich Boucher, D-Virginia, is the new head of the House Energy and Commerce Committee’s Subcommittee on Communications, Technology and the Internet. Boucher, co-chair of the Congressional Internet Caucus, has also served two decades on the Judiciary subcommittee with jurisdiction over the Internet and intellectual property. He’s known as a strong advocate of consumer rights. The full Energy and Commerce Committee is headed by Rep. Henry Waxman, D-California. The Senate Committee on Committee, Science and Transportation is headed by Sen. Daniel Inouye, D-Hawaii.

On the international front, several names surfaced as possible candidates for a senior policy position at the International Federation of Pharmaceutical Manufacturers and Associations in Geneva, but all were unconfirmed. One possible name was Albert Tramposch, a European Union consultant currently representing the Czech Republic. Another possible contender was Francisco Mingorance of the BSA in Brussels.

For the WIPO global issues tsar, two possible names were Julian Fleet of UNAIDS or Tom Bombelles, formerly of Merck, a source said.

Meanwhile, with patent reform being one of the top IP issues to watch in the United States this year, a new coalition has formed to push its agenda. The Manufacturers Alliance on Patent Policy, consisting of companies like Corning, DuPont, Milliken and Monsanto, wants to make sure the manufacturing sector is not adversely affected in any dramatic chances to patent policy.

Liza Porteus Viana may be reached at info@ip-watch.ch.