As the company’s top patent attorney, Curtis Rose, vice president and assistant general counsel at Hewlett Packard Development Company (HP), sees his role as far broader than internal patent portfolio management. A founding member and vocal supporter of the Peer-to-Patent steering committee, a director of the Intellectual Property (IP) Owners Association and a member of the Eco-Patent Commons, he divides his time between his responsibilities overseeing HP’s patent development team from his base in Corvallis, Oregon, and his more outward-looking ‘thought leadership’ activities that aim to promote the patent system externally.
‘It’s important for us to look beyond HP and also to lead by example,’ he says. ‘Patents aren’t just for the benefit of large companies. [In the US], the right is ingrained in the Constitution. That means that the patent system is a public asset, one that belongs to everyone and that all constituents should be benefiting from.’
The importance of patents might seem an easy argument for the patent head of a multinational IT company to make, but it’s worth recalling that HP was itself founded after two engineers, Stanford University graduates and friends Bill Hewlett and Dave Packard, invented an audio oscillator (used to test sound equipment) in their garage in Palo Alto, California, in 1939. Since then, HP has grown into the world’s largest technology company by revenue, operating in more than 170 countries worldwide and bringing together a portfolio that spans printing, personal computing, software services and IT networking and infrastructure.
For Rose, those beginnings and the company’s subsequent growth sum up the main purpose and potential of the patent system: ‘At its most basic level, the patent system exists as an incentive to be innovative,’ he says, ‘or, as the Constitution puts it, “To promote the Progress of Science and useful Arts” [Art 1, s8, ss8]. That’s what drives me and our efforts at HP – that incredible vision by the founders of this country – and I believe that we all have a responsibility to make sure that the system works as efficiently and fairly as possible for the benefit of everyone.’
Rose disagrees with critics of the current US patent system who lay the responsibility for correcting perceived shortcomings (such as delays in patent examination and the issue of low-quality patents) solely at the feet of the US Patent and Trademark Office (USPTO). Instead, he argues that it’s up to all users of the system to improve their practices.
‘It’s not that I don’t understand or empathise with their concerns,’ he says, ‘I just don’t think it’s okay to complain about something, but then not do anything to make the system better. Improvements can come about only from active involvement and by working with the USPTO. As I like to say, it’s better to light a candle than to curse the darkness.’
In Rose’s view, that message isn’t just relevant to large patent filers such as HP. ‘It applies to all constituents of the patent system, and that includes the small businesses and entrepreneurs, as well as larger businesses like ours,’ he says, although he does concede that it’s crucial for companies such as HP to lead the way.
What goes in must come out
His main bugbear is that arguments over patent quality often centre on the need for the USPTO, and its counterparts elsewhere in the world, to improve their examination procedures to weed out low-quality applications.
However, declines in patent quality ‘can’t just be up to the examiners to resolve,’ he argues. ‘Yes, they should be issuing only valid patents that fulfil the constitutional goals, but you have to look at what’s being inputted into that process too. If the input is thousands of low-quality applications [that don’t merit the award of a patent], it becomes difficult for the patent office to do its job.
‘Think of it as a water filter: you can’t expect clean water to come out if what you’re putting in is very muddy. With input like that to filter, it’s only natural that the system becomes clogged. If you put garbage in, garbage will most likely come out, which is why we all need to do our best to ensure that what we enter into the system is as clean as possible. That’s our goal at HP: to submit only strategic and high-quality applications that we truly believe to be valid.’ In the drive for quality over quantity, Rose says that HP goes the extra mile to ensure that it is supporting the system. For example, HP is one of the few companies to routinely conduct patentability searches before filing patent applications (which are performed in a cost-effective manner by a dedicated team from CPA Global). But, while Rose says that this level of detailed research isn’t usual for (or even required by) most businesses, it offers HP a strategic advantage in addition to the benefits he believes it holds for the patent system in general.
‘From a financial perspective, the worst-case scenario [if we don’t run these kinds of searches] is that the application will go all the way through the system, and even to grant, before we discover that the patent isn’t truly valid,’ he explains. ‘It’s much better to find that out early on in the process, before you’ve spent so much money. Even if we find that 5% of identified innovations are rejected during this process, it more than pays for the cost of the patentability search. We’re selective about the number of patents that we file, so we don’t want to waste applications on inventions that aren’t patentable.’
Of course, strength and quality aren’t HP’s only measures and drivers when it comes to registering patents. Key for Rose’s department is the need to ensure that the company’s patent portfolio reflects the business’s strategic goals and ensures its future freedom to operate in what is a hugely competitive industry sector.
And, while Rose agrees that synergy between the IP department and the wider business goals can be difficult to achieve, he believes that HP has been successful in overcoming this challenge due to the critical role played in the company by his team of patent attorneys. ‘Patent attorneys at HP have cradle-to-grave responsibility for the company’s patent portfolio,’ he says. It’s a portfolio that currently numbers 35,000 granted patents and 16,000 pending patent applications worldwide. ‘That requires a different set of skills from the traditional patent attorney role. Being a good patent attorney is important, of course, but our patent attorneys are able to do more than just draft strong patent applications. They’re involved in the process very early on, working closely with our inventors and engineers to identify the opportunities, and liaising with the business units to ensure the output matches the company’s strategic goals.’
It’s for this reason, Rose says, that his team of 50 patent attorneys is dispersed around the globe, with IP departments in six different countries and 11 different US cities. ‘They are generally located where HP’s research and development (R&D) centres and business units are,’ he explains.
Nonetheless, it must be difficult for a company that is so selective about the number of patent applications that it files to ensure that it is providing the business with the opportunities and support that it needs to expand in the future. ‘Yes, there’s a lot to keep track of to ensure that we are strategically aligned with the company’s business objectives,’ he says. ‘Our aim is to make it all look easy – and to make it happen. Part of that is achieved by being so involved in what the business units are doing and their R&D plans and product road maps. But I do also believe that part of the skill is being able to predict the future to a certain extent, and it’s a challenge for anyone to do that in an accurate way.
‘You need to constantly ask yourself: we may not have a product planned now requiring that particular technology, but what about in five, 10, or 15 years? Many of our most valuable IP Rights today were protected only because someone had the vision to look so far forward during the R&D process in the 1990s and consider how technology might conceivably evolve.’
Momentum for change
Rose is clearly buoyed by what he sees as a positive momentum towards improvement in the US patent system. For this, he credits David Kappos’ appointment (to the role of under secretary of commerce for IP and director of the USPTO), as well as the Peer-to-Patent programme and recent legislative changes, such as the Leahy-Smith America Invents Act (formerly known as the Patent Reform Act 2011).
‘It’s the first time in my professional memory that we have someone at the helm of the USPTO who also used to be a user of the service [in his previous role as vice president and chief patent attorney at IBM],’ says Rose of Kappos. ‘He’s seen it from both sides, which gives him an amazing and powerful perspective – and gives us confidence that he knows what can be improved.’
Rose adds that one of Kappos’ stated goals when he came into office was to improve the timeliness of patent grants, and he considers the Peer-to-Patent programme as a key tool for this. The project aims to help patent examiners improve their examinations. ‘By providing patent examiners and applicants with increased expert knowledge, it also helps them prosecute the application quickly,’ says Rose, adding that this is crucial given the rise in patent applications at the USPTO and other international patent offices.
‘The use of the patent system on a global scale has grown due to the ways in which businesses and markets have expanded,’ he explains. ‘HP, for example, obviously has more of a worldwide focus than it did when I first joined the company in 1993, which means that we’re filing in more places than we did before. I think that the world is becoming more innovative and more patents are being filed. Of course, that can put pressure on the system if patent offices aren’t able to scale up or improve processes.’
However, Rose feels that the impetus is there to provide patent offices and patent applicants with the knowledge and tools that they need to ensure high-quality patents are granted in a timely manner.
‘When I first started in the profession, IP was considered to be important in companies such as HP, but it was still something that was off to one side. These days, however, it’s front and centre, and is recognised as being crucial to business success. Being able to play such a key role and to work in an area that people clearly value, that’s the sort of thing that gets you excited about going to work in the morning,’ he adds.
HP IN BRIEF
Founded: 1939 by two newly qualified electrical engineers, Bill Hewlett and Dave Packard, in their garage.
Headquarters: Palo Alto, California.
Customer base: More than one billion customers in more than 170 countries.
Employees: More than 320,000 worldwide.
DID YOU KNOW?
• HP ships more than one million printers a week.
• It ships 48 million PC units annually.
• One in every three servers shipped worldwide is from HP.
• HP software provides services to more than 300 million mobile phone customers around the world.