“The contrast between someone leading the USPTO who holds to the historical American model for patents — democratized, merit-based, secure and enforceable property rights — and someone committed to destroying those foundations to please certain powerful special interests couldn’t be clearer.”
The position of director of the U.S. Patent and Trademark Office (USPTO) is one of the most critical positions in the U.S. government. This is especially true if a key objective is to outcompete America’s most adversarial competitors (and trading partners) such as China. That’s why the reported leading candidate for USPTO director raises so many cockles and concerns.
For America to out-innovate China, the incoming Trump administration’s USPTO director must come from the same cloth as the first Trump term’s USPTO director, Andrei Iancu. That is, he or she must meet and exceed such qualifications as being a patent attorney and having sufficient years of practicing patent law. Iancu set a very high bar. His superior level of excellence and dedication leading this agency didn’t escape notice, as these letters demonstrate.
What We Need
An acceptable candidate must have demonstrated unwavering commitment to the administrative reforms Iancu pursued. These include adopting the Phillips standard of claim construction, reforms lessening the Patent Trial and Appeal Board’s (PTAB’s) one-sidedness favoring infringers and challengers in its practice, and exercising the America Invents Act’s (AIA’s) discretionary denial, namely its NHK-Fintiv rule, to reduce a patent’s parallel or serial litigation.
Moreover, the next USPTO director must share a Iancuian perspective on patents: A patent doesn’t grant rights; it secures property rights. Patent rights are exclusive. Patent owners should enjoy quiet title. The U.S. patent system’s strength flows from its merit-based examination and issuance, as well as its democratized nature. Garage inventors and corporate research-and-development inventors should be treated alike at the USPTO.
Such beliefs ought to be de facto for someone whose life involves prosecuting patents or enforcing patent rights through litigation. They are imperative for the head of the USPTO.
For instance, Iancu supported access for patents generally, standard-essential patents included, to all appropriate remedies, including injunction, when infringed. This was the essence of the 2019 Joint Policy Statement on SEPs from the USPTO, the Justice Department and the National Institute of Standards and Technology (NIST).
Cautionary Tales
In 2017, as the Trump administration was beginning, Obama’s USPTO director, Michelle Lee, announced her intention to stay on. Lee, whose background was with weak-patent, predatory infringer Google, had done more than her share of harming the U.S. patent system. Google and Big Tech amassed “frequent flyer miles” as visitors to the Obama USPTO and other federal offices. They blazed the weaponization of PTAB. Lee’s implementation of the AIA and PTAB has led to the result of invalidating 70% of all of a challenged patent’s claims and 85% of the patent claims brought before the PTAB. Mine was one of the voices urging that she be shown the door.
That experience of a Big Tech patent infringer mouthpiece heading the USPTO (reprised in the Biden administration) should serve as a cautionary tale. The contrast between someone leading the USPTO who holds to the historical American model for patents — democratized, merit-based, secure and enforceable property rights — and someone committed to destroying those foundations to please certain powerful special interests couldn’t be clearer.
Thus, it’s especially important that the second Trump administration take care and caution regarding the individuals selected to lead the USPTO and NIST, as well as Intellectual Property Enforcement Coordinator and other positions in the White House and administration whose roles intersect with patents and IP.
The first Trump administration hit a home run in its choices to lead the USPTO (Iancu), NIST (Walter Copan), the Department of Justice (DOJ) Antitrust Division (Makan Delrahim), and Federal Trade Commission (FTC) general counsel Alden Abbott. But it struck out in selecting Vishal Amin as IPEC and installing Joe Matal as acting USPTO director before Iancu arrived.
Gene Quinn has weighed in on the ironic, incoherent nature of tapping Amin. “It would be a disaster in the making to have the Director of the USPTO fundamentally opposed to the Secretary of Commerce on patents,” he observed. “Few people are more closely identified as being responsible for the subjugation of Little Tech at the hands of Big Tech than is Vishal Amin.”
Amin Would Lead Us in the Wrong Direction
The misguided leaning toward handing the USPTO’s reins to Amin is almost certain to alarm Secretary of Commerce-designate Howard Lutnick. If chosen, Amin will most certainly lead the USPTO in directions opposite to Lutnick’s view of patents.Lutnick is an inventor and owner of around 800 patents.
In sharp contrast, Amin is an architect of the AIA and PTAB. Amin led the U.S. House’s attempts in 2013 and the next few years to enact many of the adverse-to-patent-rights provisions omitted from the AIA, comprised in then-House Judiciary Committee Chairman Bob Goodlatte’s mislabeled “Innovation Act.” His time as IPEC didn’t distinguish Amin as turning over a new leaf in his views on patents. Amin now works for Intel, the sixth biggest user of the PTAB.
In other words, Amin, like his ideological soulmates Lee, Matal, and outgoing USPTO Director Kathi Vidal, would continue down the Obama and Biden anti-patent, anti-property rights policy direction. Moreover, he would ensure the Big TechInfringers’ Lobby agency capture and access. The USPTO would further weaken patents and render patent rights even more tentative.
Image Source: Deposit Photos
Author: kchungtw
Image ID: 130677098
