Policy Leadership; Comparative Views from Antitrust; Japan and Germany: Chief Judge Michael Boudin's June 9th speech to the black tie annual Supreme Court dinner of the Giles Sutherland Rich American Inn of Court provided a unique comparative assessment of the separate worlds of antitrust and patent law. The leader of the First Circuit Court of Appeals provided the patent community with the implicit message of a missing think tank environment for the study of patent policy issues facing the United States.

Critical to United States' continued leadership in the global patent community and the creation of strong patent rights for American companies in emerging Asian markets is a domestic government leadership that is fully knowledgeable and well versed in the intricacies of both domestic and international substantive patent law and policy. Domestically, the increased Supreme Court interest in patent matters demands the highest level of sophistication by the Administration in patent policy issues by the U.S. Patent and Trademark Office (PTO) which otherwise by default abdicates that role to other government agencies which increasingly are gaining more and more knowledge about patent law and economics.

Upgraded PTO Role: The upgrading of the leadership role at the PTO over the past generation from "Commissioner" to "Under Secretary" was thought to provide an impetus in that direction, giving heightened prestige to the position of the PTO within the government. Indeed, in the early 1980's Commissioner Mossinghoff established his office as central to Administration intellectual property policy. The leadership position was further politicized in the early 1990's under Bruce Lehman. But, in the wake of the ultimate title inflation to Under Secretary at the turn of this century, there has been a succession of leadership of the undeniably bright Boalt Hall alumnus "Judge Jim" Rogan and the current incumbent, Chicago graduate Jon Dudas. Following in this tradition, the new Under Secretary, Margaret Peterlin, is an also undeniably bright Chicago law graduate. She succeeds a Deputy Under Secretary who has a name so unfamiliar to the patent community that he would be the perfect stopper question for any trivia question among even the most knowledgeable patent experts, someone this writer has never met nor heard nor read. But, none has even professed to have had any experience whatsoever in substantive patent practice prior to coming to the Administration. (The sad absence of knowledge about comparative and international patent law is that not only was the incumbent leader unable to field a considerably off base question from Senator Coburn about Japanese patent practice at last Thursday's Senate hearing, but obviously he had neither sufficient preparation nor accompanying staff to provide a credible answer. Nothing. Simply nothing.)

Policy Studies in the Antitrust Area, A Contrast: The Chief Judge pointed to the great availability of economic studies and information and the wealth of knowledge provided in the antitrust area provided by the Federal Trade Commission and the Department of Justice through its Antitrust Division There is simply nothing comparable in the patent arena.

Lessons from Japan and Germany: What's missing is any patent law experience by the PTO leadership and, a fortiori, any patent law leadership in the area of patent policy from the top. This is in marked contrast to the great experience of the career Deputy Director position of the Japan Patent Office which is always manned by a career JPO official who in the past generation is a multilingual expert who has spent several years abroad, most often in the United States, as part of comparative training. The classic model had been the German Patent Office where the late Dr. Reimer who moved the Office from Berlin to Munich and established the highest level in house comparative patent law think tank in the world, an institution so important it was codified after his passing as a specialized patent-focused Max Planck Institute.