This election, like every election, includes the chorus chant: “drain the swamp”! You’d think that as often as it gets said – every election – it might eventually result in the swamp (i.e., Washington, D.C.) being somewhat less full than it was before. Not so. In fact, never so. Okay, then, why so? Well, here’s a sample story from the swamp.
I attended a lovely patent oriented gala in D.C. earlier this month. Good food, lovely atmosphere, engaging conversation, and numerous patent friends I’ve known a long, long time. During the event, many worthy inventors received recognition for pharma creations in the area of cancer treatments. None of the recipients, I will observe, talked about making money using patents, instead they all talked about raising money using patents and, then, helping patients. I couldn’t help but notice, however, that a past award winner, 1998, had had their patent invalidated by the Supreme Court in the recent Myriad decision. But, I digress.
I looked around the room at the members of what is the “patent swamp” circa 2016. This was an important event, so all the swamp creatures were there. All nice folks, all well intended, and all a part of the problem. Likely, including me, inasmuch as I, myself, used to ply the swamp waters for the PTO in the mid-80’s as a patent examiner and speechwriter for then head of the Office, Commissioner Quiqq.
You see, these creatures have inhabited the D.C. swamp for many years as Hill staffers, current and former PTO officials, Court Clerks, Association Officials, PTO Advisory board members, and lobbyists. And, they have done much: to wit: They were all here for AIPA, which made a total train wreck of 35 USC 102e in the process. They have been here throughout the absolute serial disaster that has become the norm in Supreme Court patent jurisprudence. End-to-end awful, from Festo forward to Alice, to the absolute gut punch denial of cert in Sequenom. They were all here, as well, playing their dutiful roles, when the PTO was sued in District Court to stop a Rules package for continuations. They were all present for the long gestation, passage, and then implementation of the AIA. Yup, that’s right, happy PTAB to you too buddy; one-and-all!
And yet, despite this record of unmatched destruction, these same swamp creatures are vying for notice from the Trump Transition team to “fix” the patent system. Lobbyists intent on further “reforming” the patent system for what their clients determine is the better (i.e., better for them) are already tickling the keys of their computers, and the bank accounts of their benefactors, to rush into the void left in the wake of this election. Emails and meetings and lunches and dinners abound. I can only say one thing – please stop!
What can we do, those of us in apparent patent flyover country, i.e., those of us not in D.C. or Northern California? Watch with dismay I expect. You see, you cannot rid yourself of the swamp creatures. Further, no single one of these swamp creatures is per se bad, each has good characteristics, but collectively, by any objective measure, the results are beyond debate. Awful. The swamp creatures represent associations and groupings of patent system stake holders. These would include Silicon Valley giants, Internet elite, retailers, patent owners, patent practitioners, licensing groups, universities, and even independent inventor groups. Doubtless, they all accomplish what they’ve told the clients they represent that they could accomplish. They have endless lives and persist administration to administration and Congress to Congress. They all “speak” for some interest. Alas, no one is left to speak for America. You know, the country whom the system is meant to benefit. Remember that country? Sometimes I find it increasingly difficult to remember America, or at least the America I grew up knowing.
If someone were there to speak for America that person would recognize the obvious. There is no historical evidence of any economy having a thriving innovation ecosystem without a solid, strong patent system. Similarly, one of the greatest threats faced by any business, particularly a start-up or small business, is the threat of frivolous litigation. But where is the honest broker to acknowledge truth? If there is one I don’t see it, and as one who has spent a career helping innovators of all stripes I find that rather odious.
Someone, somewhere (and not, please oh please, not an academic) needs to come forward and speak to what the system needs to accomplish for the benefit of the population beyond those in the swamp. The ultimate trick will be harnessing the swamp creatures, and their capacity to accomplish things, as a force for good.
The patent system is intended to instill motive in those with ideas and solutions, to then create and come forward with public disclosure. A patent is not a grant of right, you can certainly practice your invention (subject to the rights of others) without a patent, instead a patent is the public recognition of exclusive ownership for a limited period. This incentivized public disclosure creates buildings blocks upon which entire industries can be built.
The Wright brothers, on a micro budget, flew despite the repeated failings of the largest government (swamp) contract to date, to Langley, to accomplish the very same thing. You see, large entities like governments and corporations do not innovate very well, if at all; rather, people do. The patent system should be designed to sustain the people who innovate; and yet it has been systematically attacked by large entities, including this government, its lobbyists, and the Supreme Court. The system needs to be rebalanced with winners falling where they may, instead of the system being rigged this way and that at the behest of tides in the swamp.
I remember at the start of my patent career, with giddy naiveite, the judicial modesty from the Chakrabarty opinion. The Supreme Court (then, certainly not now) turned back a stack of doom filled amici against the patenting of life, with simple non-parsed phrasing that labeled the new life form “an article of manufacture”. End of decision; beginning of a new industry. Now, in contrast, the Supreme Court, flummoxed, remands for a definition of such terms! See Samsung v. Apple. If they were going to refuse to answer the single most relevant question presented in the case why take the case in the first place? This judicially activist Supreme Court conveniently reverts to an ultra conservative judicial philosophy of answering the least important question and leaving all others open when the issues get hard. Pathetic.
Can we realistically expect to drain the swamp? No, and certainly not any time soon. What the system needs at the PTO is someone who is, themselves, both “swamp resistant” and “swamp savvy”. Such a person needs to thrive in the swamp, work with the swamp creatures, and get things done. The swamp resistant Director also needs to be an able and credible advocate before Congress in turning back unhelpful elements of patent “reform”, with a veto if necessary. Manifestly, the ailing system needs a tweak here and there, not reform. As I have said, the tweak recipe is straightforward: The statute needs some new definitions for 35 USC 100 to overrule misguided Supreme Court decisions on patent eligibility (see Toxic Brew) and to overrule eBay. The post-grant procedures need fixing (see Curing the PTAB – 3 Fixes). Lastly, the PTO needs a Kappos style re-do as to attitude and operation (See Regime Change). If the swamp creatures will help, this can be done – and soon!