REVIEW OF RECENT JUDICIAL DECISIONS
`ON PATENT LAW
`
`HEARING
`BEFORE THE
`SUBCOMMITTEE ON
`INTELLECTUAL PROPERTY,
`COMPETITION, AND THE INTERNET
`OF THE
`COMMITTEE ON THE JUDICIARY
`HOUSE OF REPRESENTATIVES
`ONE HUNDRED TWELFTH CONGRESS
`
`FIRST SESSION
`
`MARCH 10, 2011
`
`Serial No. 112–20
`
`Printed for the use of the Committee on the Judiciary
`
`(
`
`Available via the World Wide Web: http://judiciary.house.gov
`
`65–078 PDF
`
`U.S. GOVERNMENT PRINTING OFFICE
`WASHINGTON :
`2011
`
`For sale by the Superintendent of Documents, U.S. Government Printing Office
`Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800
`Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001
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`COMMITTEE ON THE JUDICIARY
`
`LAMAR SMITH, Texas, Chairman
`JOHN CONYERS, JR., Michigan
`F. JAMES SENSENBRENNER, JR.,
`HOWARD L. BERMAN, California
`Wisconsin
`JERROLD NADLER, New York
`HOWARD COBLE, North Carolina
`ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia
`ELTON GALLEGLY, California
`MELVIN L. WATT, North Carolina
`BOB GOODLATTE, Virginia
`ZOE LOFGREN, California
`DANIEL E. LUNGREN, California
`SHEILA JACKSON LEE, Texas
`STEVE CHABOT, Ohio
`MAXINE WATERS, California
`DARRELL E. ISSA, California
`STEVE COHEN, Tennessee
`MIKE PENCE, Indiana
`HENRY C. ‘‘HANK’’ JOHNSON, JR.,
`J. RANDY FORBES, Virginia
`Georgia
`STEVE KING, Iowa
`PEDRO PIERLUISI, Puerto Rico
`TRENT FRANKS, Arizona
`MIKE QUIGLEY, Illinois
`LOUIE GOHMERT, Texas
`JUDY CHU, California
`JIM JORDAN, Ohio
`TED DEUTCH, Florida
`TED POE, Texas
`LINDA T. SA´ NCHEZ, California
`JASON CHAFFETZ, Utah
`DEBBIE WASSERMAN SCHULTZ, Florida
`TOM REED, New York
`TIM GRIFFIN, Arkansas
`TOM MARINO, Pennsylvania
`TREY GOWDY, South Carolina
`DENNIS ROSS, Florida
`SANDY ADAMS, Florida
`BEN QUAYLE, Arizona
`
`SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel
`PERRY APELBAUM, Minority Staff Director and Chief Counsel
`
`SUBCOMMITTEE ON INTELLECTUAL PROPERTY, COMPETITION, AND THE INTERNET
`
`BOB GOODLATTE, Virginia, Chairman
`HOWARD COBLE, North Carolina, Vice-Chairman
`F. JAMES SENSENBRENNER, JR.,
`MELVIN L. WATT, North Carolina
`JOHN CONYERS, JR., Michigan
`Wisconsin
`HOWARD L. BERMAN, California
`STEVE CHABOT, Ohio
`JUDY CHU, California
`DARRELL E. ISSA, California
`TED DEUTCH, Florida
`MIKE PENCE, Indiana
`LINDA T. SA´ NCHEZ, California
`JIM JORDAN, Ohio
`DEBBIE WASSERMAN SCHULTZ, Florida
`TED POE, Texas
`JERROLD NADLER, New York
`JASON CHAFFETZ, Utah
`ZOE LOFGREN, California
`TOM REED, New York
`SHEILA JACKSON LEE, Texas
`TIM GRIFFIN, Arkansas
`MAXINE WATERS, California
`TOM MARINO, Pennsylvania
`SANDY ADAMS, Florida
`BEN QUAYLE, Arizona
`
`BLAINE MERRITT, Chief Counsel
`STEPHANIE MOORE, Minority Counsel
`
`(II)
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`C O N T E N T S
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`MARCH 10, 2011
`
`OPENING STATEMENTS
`The Honorable Bob Goodlatte, a Representative in Congress from the State
`of Virginia, and Chairman, Subcommittee on Intellectual Property, Com-
`petition, and the Internet ....................................................................................
`The Honorable Melvin L. Watt, a Representative in Congress from the State
`of North Carolina, and Ranking Member, Subcommittee on Intellectual
`Property, Competition, and the Internet ............................................................
`The Honorable John Conyers, Jr., a Representative in Congress from the
`State of Michigan, Ranking Member, Committee on the Judiciary, and
`Member, Subcommittee on Intellectual Property, Competition, and the
`Internet .................................................................................................................
`
`WITNESSES
`Dan L. Burk, Chancellor’s Professor of Law, University of California, Irvine
`Oral Testimony .....................................................................................................
`Prepared Statement .............................................................................................
`Andrew J. Pincus, Partner, Mayer Brown LLP
`Oral Testimony .....................................................................................................
`Prepared Statement .............................................................................................
`Dennis Crouch, Associate Professor of Law, University of Missouri School
`of Law
`Oral Testimony .....................................................................................................
`Prepared Statement .............................................................................................
`
`APPENDIX
`
`MATERIAL SUBMITTED FOR THE HEARING RECORD
`Prepared Statement of the Coalition for Patent Fairness ....................................
`Prepared Statement of John Boswell, Senior Vice President and General
`Counsel, SAS Institute
`........................................................................................
`Prepared Statement of Lateef Mtima, Professor, on behalf of the Institute
`for Intellectual Property and Social Justice .......................................................
`
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`REVIEW OF RECENT JUDICIAL DECISIONS
`ON PATENT LAW
`
`THURSDAY, MARCH 10, 2011
`
`HOUSE OF REPRESENTATIVES,
`SUBCOMMITTEE ON INTELLECTUAL PROPERTY,
`COMPETITION, AND THE INTERNET,
`COMMITTEE ON THE JUDICIARY,
`Washington, DC.
`
`The Subcommittee met, pursuant to notice, at 1:06 p.m., in room
`2141, Rayburn Office Building, the Honorable Bob Goodlatte
`(Chairman of the Subcommittee) presiding.
`Present: Representatives Goodlatte, Coble, Sensenbrenner, Issa,
`Poe, Reed, Griffin, Adams, Quayle, Watt, Conyers, Chu, and Nad-
`ler.
`Staff present: (Majority) Blaine Merritt, Subcommittee Chief
`Counsel; Olivia Lee, Clerk; and Stephanie Moore, Minority Coun-
`sel.
`Mr. GOODLATTE. Good afternoon. The Subcommittee will come to
`order.
`I have a statement. At the outset I want to express my surprise,
`as well as delight, that the other body has acted so expeditiously
`on their Patent Reform Bill. I look forward to continuing to work
`with Chairman Smith, Ranking Member Watt and other Members
`of the Judiciary Committee to fashion the House bill. This is the
`closest we have come in the past 6 years to enacting comprehensive
`patent reform and I am optimistic that we can get a bipartisan, bi-
`cameral bill on the President’s desk in the near future.
`Whatever the fate of patent reform in the coming weeks, we can
`all agree that Congress has found it difficult to enact a truly com-
`prehensive reform bill. Why? The answer is twofold. First, different
`versions of the legislation have addressed many core provisions of
`the Patent Act. And second, a number of different stakeholders use
`the patent system in different ways. Businesses that devote signifi-
`cant resources on research and development have a greater finan-
`cial need for patent protection than those spending less on R&D.
`In addition, some companies may generate one or two clearly un-
`derstood patents that define an entire product while others, in the
`software or tech realms, may develop products that contain hun-
`dreds or even thousands of patents. In addition, many industries
`practice their patent portfolio defensively while other industries
`and patent-holding companies tend to go on the offensive to pursue
`their patent rights.
`
`(1)
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`What this means is that our unitary patent system does not treat
`or affect all patent players in the same way. Some companies don’t
`need the Patent Act to innovate or operate; others couldn’t exist
`without it and the rest fall somewhere in between the two ex-
`tremes.
`All of these factors have certainly made Congress’ task more dif-
`ficult. Some patent observers believe that Congress cannot accom-
`modate the concerns of all industry stakeholders with competing or
`incompatible financial interests every time a need to reform our
`patent law arises. They claim it would be far too time consuming
`and would generate substantial administrative cost for the courts
`and uncertainty for the stakeholders. There is also a strong likeli-
`hood that any industry specific legislative reform would ultimately
`fail because its lack of sufficient generality would not contemplate
`later changes in technology.
`Finally, it is possible that such Balkanization of the Patent Act
`violates our international obligations under various treaties or pro-
`tocols such as TRIPS, the intellectual property component of the
`General Agreement on Tariffs and Trade.
`According to these patent critics, the courts are better positioned
`to generate appropriate reform over time, at least if Congress can-
`not do so legislatively. My belief is that Congress can learn from
`what the courts are doing and if the courts sufficiently have ad-
`dressed an area of patent reform, then that may obviate the need
`for the Congress to act. In fact, one reason we are making greater
`progress on patent reform is because some of the more controver-
`sial issues that engendered the most disagreements are no longer
`addressed in the Senate bill. That is because the Supreme Court
`and the Federal Circuit have handed down decisions addressing
`many of the contentious issues we have grappled with over the
`years.
`This hearing will examine what the courts have done over the
`past 6 years to address the concerns Congress have expressed re-
`garding—in the form of patent reform legislation and what remains
`for Congress to tackle.
`For example, when we first began to discuss patent reform I ar-
`gued strongly that patent reform legislation needed to include re-
`form of the way injunctions were being ordered by the courts in
`patent cases. The courts had developed a pattern of granting in-
`junctions in almost all cases despite the plain reading of the stat-
`ute. While finding common ground on a legislative solution proved
`extremely difficult, the Supreme Court addressed this issue conclu-
`sively with the eBay v. mercExchange decision in 2006.
`I look forward to hearing from our witnesses about other
`progress the courts have made in correcting some of the abuses
`that have been occurring with our patent laws. This hearing could
`not come at a more meaningful time in the process as the House
`readies its version of patent reform legislation for introduction.
`It is now my pleasure to recognize the Ranking Member of the
`Subcommittee, the gentleman from North Carolina, Mr. Watt?
`Mr. WATT. Thank you, Mr. Chairman and thank you for con-
`vening today’s hearing. It is an important hearing and I think it
`will be valuable to us as we move forward in this area of crafting
`new patent legislation.
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`As a former litigator of 22 years, I know both of the benefits of
`meaningful, warranted litigation and the burdens of frivolous, cost-
`ly litigation, to the parties and to society at large. As a legislator
`for the past 19 years I also appreciate the need for Congress to
`monitor developments in the judicial system and where appropriate
`respond legislatively.
`Today’s hearing fittingly provides us with the opportunity to ex-
`amine recent developments in patent law, to assess whether the
`courts are trending in the direction we think best or whether we
`should just stay out of some areas and let what the courts have
`said continue to be the prevailing law there and avoid additional
`controversies.
`So for us to do that and do it appropriately and in a balanced
`way, I think we need to have a better understanding of what the
`courts have done, have not done, what people perceive are the gray
`areas, the nuances that we need to be evaluating. And I am looking
`forward to hearing the testimony with that in mind.
`With that, Mr. Chairman, I yield back.
`Mr. GOODLATTE. I thank the gentleman. And it is now my pleas-
`ure to recognize the Ranking Member of the full Committee and a
`very consistent participate—participant in this Subcommittee, the
`gentleman from Michigan, Mr. Conyers?
`Mr. CONYERS. Thank you, Mr. Chairman and Ranking Member.
`My congratulations on bringing us together at this point in time on
`a very important subject.
`Most of my opening statement deals with the fact that patent re-
`form has frequently ended up bipartisan in this Congress and in
`the 110th and 109th too, as a matter of fact. And that the courts
`have helped us, as you have said, Chairman Goodlatte, in ferreting
`out a lot of issues that seems to me that we can take mostly off
`the table. There are a number of subject matter where the courts
`have been helpful: venue, injunctions, willfulness, damages, obvi-
`ousness have all helped us a lot.
`We now have a Senate product and we will be meeting here, in-
`formally, with Chairman Smith, with our colleagues, Issa, Coble,
`Watt, Zoe Lofgren and of course Howard Berman. And so I think
`we are well on the way.
`I have got a list of decisions that have been very helpful in sort-
`ing out some issues that the court can handle, perhaps, arguably
`even better than the legislature and some issues that are—that are
`leaving us with issues that are unique to ourselves.
`And so we are pleased to have these witnesses before us and I
`look forward and yield back the balance of my time.
`Mr. GOODLATTE. I thank the gentleman. Without objection, other
`Members’ opening statements will be made a part of the record and
`we will now welcome our witnesses.
`We have a very distinguished panel today. Each of the witness’s
`written statements will be entered into the record in its entirety.
`And I ask each witness to summarize their testimony in 5 minutes
`or less. To help you stay within that time limit there is a timing
`light on your table. When the light switches from green to yellow
`you have 1 minute to conclude your testimony. When the light
`turns red it signals that the witness’ 5 minutes have expired.
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`Before I introduce our witnesses I would like them to stand and
`as is the custom of this Committee, be sworn in.
`[Witnesses sworn.]
`Mr. GOODLATTE. Thank you and be seated.
`Our first witness is Dan Burk, Chancellor’s Professor of Law at
`the University of California, Irvine, School of Law. Professor Burk
`is an internationally prominent authority on legal and social issues
`related to high technology whose research encompasses the areas
`of patent, copyright, electronic commerce and biotechnology law.
`Some of his most recent work has considered the statutory policy
`levers used by courts to apply patent incentives to industries with
`diverse innovation profiles, as well as the affect of intellectual
`property rights on the structure of firms and of industries. He is
`the co-author, along with Mark Lemley, of ‘‘The Patent Crisis and
`How the Courts Can Solve It.’’
`Professor Burk received his BS in microbiology from Brigham
`Young University; his MS in molecular biology and biochemistry
`from Northwestern; his JD from Arizona State and his JSD from
`Stanford. He has covered the West Coast pretty well and even got
`as far as Illinois.
`Our next witness is Andrew J. Pincus, a partner at Mayer Brown
`here in Washington, D.C. Mr. Pincus will testify on behalf of the
`Business Software Alliance. He focuses on appellate practice on
`briefing and arguing cases before the U.S. Supreme Court and the
`Federal and State appellate courts. He is argued 22 cases before
`the Supreme Court and has filed Supreme Court briefs in more
`than 100 other cases. Mr. Pincus has also served as a Federal law
`clerk; general counsel of Anderson Worldwide and as the general
`counsel of the Department of Commerce.
`He was educated at Yale and the Columbia School of Law.
`Our final witness is Dennis Crouch, Associate Professor of Law
`at the University of Missouri. Prior to joining the Missouri faculty
`Professor Crouch taught at Boston University and practiced law in
`Chicago. He has also worked as a research fellow at NASA; a soft-
`ware developer at the Mayo Clinic and a Peace Corp volunteer in
`Ghana.
`He is perhaps best known as the editor of the popular patent
`blog, ‘‘Patently-O’’. Is that ‘‘O’’ or zero?
`Mr. PINCUS. ‘‘O.’’
`Mr. GOODLATTE. The—Professor Crouch earned his BSE in me-
`chanical engineering from Princeton and his JD from the Univer-
`sity of Chicago Law School.
`Welcome to you all and we will begin with Professor Burk.
`
`TESTIMONY OF DAN L. BURK, CHANCELLOR’S PROFESSOR
`OF LAW, UNIVERSITY OF CALIFORNIA, IRVINE
`Mr. BURK. Thank you very much, Mr. Chairman.
`I am honored to be here with you, with the Committee today. I
`speak only for myself, as a scholar, but I am happy to present some
`of my research findings to the Committee.
`And I congratulate you, Mr. Chairman and that of our col-
`leagues, on your leadership in addressing this question of patent
`reform and especially this question as to what has been decided by
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`the courts, what could be decided by the courts and what might be
`the role of Congress at this point.
`Mr. Chairman, I would say that the news is good news. As you
`indicated in your opening statement, as we also hear from Mr.
`Watt and Mr. Conyers in their opening statements, many of the
`contentious and difficult issues that have been identified in the
`area of patent reform over the past several years and which were
`suggested as possible topics of legislative reform have been ad-
`dressed by the courts. And what that tells us, Mr. Chairman, is
`that the system is working the way that it is supposed to, that the
`courts are applying the statute, that we have a robust and dynamic
`statute that can address the needs of innovators.
`Innovation is a messy and protracted and dynamic and often un-
`expected business. The needs of innovators vary widely, as you in-
`dicated in your opening statement, Mr. Chairman. The needs of the
`software industry are very different than the needs of the pharma-
`ceutical industry. Both of their needs are very different than semi-
`conductors and other industries. There are industries that we had
`not yet imagined or that are just emerging and all of them have
`very diverse innovation profiles.
`All of them need the assistance of the patent statute to help
`them innovate. How can that possibly happen? It is neither prac-
`tical, nor desirable, nor necessary for this Committee or for the
`Members of Congress to sit and continually tweak and adjust the
`patent statute to meet all those different needs that you pointed
`out in your opening statement, Mr. Chairman. Rather, what can
`happen, what is happening is that Congress charts the course. Con-
`gress sets the goals, sets the rules of the game, if you will, and
`then supplies the tools, through the statute to the courts, and
`sometimes to the patent office, in order to continually update and
`adjust the law to meet the ongoing changing needs of American in-
`dustry so that the innovation that we all depend on can happen.
`And we have seen that happen over the past several years. You
`gave a wonderful example in your opening statement, Mr. Chair-
`man, of the way that injunctive relief has been addressed by the
`Supreme Court. And since that has happened we have seen empiri-
`cally a drop off in the number of injunctions, incorrectly or improvi-
`dently granted, that might impede innovation.
`The same type of process is ongoing in other areas, such as in-
`equitable conduct, venue for patent lawsuits or the size of damage
`awards. In each of those cases we see the courts addressing those
`issues, grappling with those issues and solving those issues. And
`the written statements contain information and data about those
`particular cases.
`Are there places where Congress needs to intervene? Each of the
`opening statements asked that question. I would say that the an-
`swer is yes. For example, if you want to make a fundamental
`change to the rules of the game, if you want to adjust the fun-
`damentals of the patent system, such as, for example, the current
`proposals to switch from a first-to-invent system that we have now,
`to a first-to-file system, that has to happen in Congress. The costs
`of making that switch are very significant; it would be disruptive
`to nearly 200 years of established law; and the determination must
`be made before that happens that the costs are worth the benefits
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`that might happen from the change. The courts can’t do that, the
`courts should not do that, that is a determination that really has
`to be made here.
`Similarly, the question of post-grant opposition. It is a decision
`that the Patent Office can’t make, the courts can’t make, that is
`something for you here in this legislative body to address.
`So in summary, Mr. Chairman, as I say, the news is good. Many
`of the most difficult issues that were before Congress 7 years ago
`have been resolved or are being resolved by the courts. That tells
`us that we have a robust statute, that the courts, and sometimes
`the Patent Office, can use to resolve most of these problems. And
`there remains a very small subset of problems, such as first-to-file
`or post-grant opposition, for this body to address.
`I again congratulate you on looking into this issue and I look for-
`ward to answering any questions, either oral or written, that you
`or the distinguished Members of the Committee might have for me.
`Thank you.
`[The prepared statement of Mr. Burk follows:]
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`Mr. GOODLATTE. Thank you, Professor Burk.
`Mr. Pincus, welcome.
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`TESTIMONY OF ANDREW J. PINCUS, PARTNER,
`MAYER BROWN LLP
`Mr. PINCUS. Thank you, Mr. Chairman, Ranking Member
`Watt——
`Mr. GOODLATTE. You may want to turn that on and pull it close.
`Mr. PINCUS. Got you. Thank you, Mr. Chairman, Ranking Mem-
`ber Watt and Members of the Subcommittee. It is an honor to ap-
`pear before you today, as you noted, on behalf of the Business Soft-
`ware Alliance.
`As the Members of the Subcommittee know BSA has been a
`strong supporter of patent reform throughout the nearly 6 years
`that this Committee has been focused on modernizing the patent
`law. BSA companies are innovators, they are substantial patent
`holders and at the same time they are frequently named as defend-
`ants in patent infringement actions. And so they have a great in-
`terest in properly calibrating the standards for obtaining patents,
`for challenging dubiously granted patents in administrative pro-
`ceedings and also for enforcing patents in the courts.
`This Committee’s intense focus on the problems in the patent
`system since 2005 has had a real impact, significant impact on the
`court’s interpretation of the patent law. From 2000 to 2005 the Su-
`preme Court decided only three patent cases. From 2006 through
`the end of the current term The Court will have ruled on eight pat-
`ent issues. And the Federal Circuit has also been quite active in
`clarifying previously uncertain or unjustified legal principles.
`And the Supreme Court’s opinions and the Federal Circuit’s opin-
`ions have addressed, and largely cured, the imbalances in the law
`that created risks for inventors and diminished their incentives to
`innovate that this Committee focused on in its deliberations over
`this period. Just to name a few:
`The standard governing the issuance of injunctions in infringe-
`ment cases, as you noted, Mr. Chairman, was a critical and very,
`very controversial issue in 2005 when the first bill was introduced.
`The Supreme Court resolved that issue unanimously in its eBay
`decision.
`The low standard for proof of willfulness, which results in the
`imposition of multiple damages and the associated unjustified in-
`trusion on the attorney/client privilege, which was also the subject
`of a lot of the Committee’s deliberations, were overturned by the
`Federal Circuit in the Knorr-Bremse and the Seagate decisions.
`The broad interpretation of Section 271F of the patent law,
`which led to significant extraterritorial application of our patent
`laws, was overturned by the Supreme Court in the Microsoft v.
`AT&T decisions.
`And the vague standards for calculating reasonable royalty,
`which is one of the principal drivers of abusive infringement litiga-
`tion have been clarified. In a series of several rulings, the Federal
`Circuit has made clear that first of all, there will be appellate re-
`view of damages awards; there is not going to be a hands-off atti-
`tude by the Federal Circuit. That the entire market value rule,
`something this Committee focused on a lot is something that is in-
`applicable in most cases. And the compensatory damages, in the
`reasonable royalty context especially, should be based on the spe-
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`cific features of the defendant’s product that are attributable to the
`infringed patent and that that is the rule, not the exception.
`And finally, as you noted, forum shopping has been addressed by
`a series of Federal Circuit rulings in which the Court, exercising
`its mandamus authority, has required plaintiffs to show a real con-
`nection between the forum and the litigation in order to maintain
`an action.
`So these key litigation issues have been resolved for the courts,
`at least for now. Obviously we will have to wait and see what will
`happen in the years ahead, no one can predict.
`But Congress still has an essentially role to play. The courts can
`interpret the statutory provisions governing infringement actions,
`as Professor Burk noted, but there is some issues the courts can’t
`address, because they require new legislation. And BSA member
`companies urge the Committee to focus its patent reform efforts on
`these areas, in particular, funding of the PTO, which the PTO obvi-
`ously needs the freedom to set its own fees, to reduce pendency and
`have the funds it needs to become the efficient operation that it can
`become and of course fee diversion should be ended.
`An effective administration system to weed out bad patent. The
`experts at the PTO are in the best position to decide if a patent
`has been poorly issued, and they need an effective procedure in
`place to allow them to do that so people can challenge patents that
`were issued unjustifiably, bring those issues to the PTO and that
`requires changes to the current inter partes system. Allowing third
`parties to submit prior art for consideration of the examination
`process, something—this has been in all the bills considered by this
`Committee; putting an end to the false marking litigation, cottage
`industry that has grown up, really a new issue that has just arise
`in the last couple of years, that really needs to be addressed is this
`plague of false marking cases. And finally, adopting the first inven-
`tor to file system with the accompanying prior user rights that go
`along with it.
`Thank you very much, Mr. Chairman. I look forward to address-
`ing the Subcommittee’s questions.
`[The prepared statement of Mr. Pincus follows:]
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`Mr. GOODLATTE. Thank you, Mr. Pincus.
`And Mr. Crouch, welcome.
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`TESTIMONY OF DENNIS CROUCH, ASSOCIATE PROFESSOR
`OF LAW, UNIVERSITY OF MISSOURI SCHOOL OF LAW
`Mr. CROUCH. Mr. Chairman, thank you very much. Mr. Vice-
`Chairman, Members of the Committee, I would like to thank you
`for inviting me here today.
`Last week in Missouri we held a major conference that focused
`on the role of the Court of Appeals for the Federal Circuit, in pat-
`ent policy. And United States Patent and Trademark Office Direc-
`tor David Kappos was there, along w