Will the Trump Administration Be Pro Patent?

By Joseph Allen
February 27, 2017

President Donald J. Trump sworn in by Chief Justice John Roberts.

President Donald J. Trump sworn in by Chief Justice John Roberts.

One of the many questions about the Trump Administration after its first month is how it views the U.S. patent system. Predicting Patent Policy Under the Trump Administration by Mark Hannemann and his colleagues at Shearman & Sterling, LLP, which reaches many of the same conclusions as the earlier analysis of Peter Harter and Gene Quinn on the topic (see here, here and here), is an excellent summary of the on-going patent reform debate with informed speculation on where the Trump Administration will come down.

“… unlike Ms. Clinton and President Obama, President Donald Trump has given almost no indication about his position on issues of patent policy. The anecdotal consensus, however, seems to be that the Trump administration will be more pro-patent than the low bar set by the Obama Administration, which was likely to have been followed by President Clinton.”

I asked several experienced veterans of the patent reform wars to review the article and share their thoughts on some key questions. Before getting to that, here’s a quick snapshot of the column. It nicely summarizes the patent reform issues and lists the pro patent influences in the new Administration including:

  • Vice President Pence, previously a defender of inventors on the House Judiciary Committee and as Governor of Indiana;
  • Donald Trump, Jr., who partnered with MacroSolve “a company … that engaged in an aggressive enforcement campaign of a single software patent. Trump Jr. wrote an editorial in The Daily Caller in 2012 in defense of ‘genuine’ patent enforcement, in which he distinguished ‘trolls’ who ‘hoard software patents with the sole intention of leveraging them for a quick payday’ from companies who enforced ‘innovative’ technology.”
  • Steve Bannon, chief strategist to President Trump, who ran several pro patent articles while leading Breitbart News;
  • Ken Blackwell, who served on the transition team, author of “The Conservative Case Against Patent Reform;”
  • Wilbur Ross, the new Secretary of Commerce, a strong advocate of cracking down on intellectual property theft;
  • The Heritage Foundation, which Politico called “one of the most influential forces shaping President Donald Trump’s transition team” which opposed H.R.9, the failed patent “reform” bill in the last Congress, fearing it further weakened the patent system; and
  • The American Conservative Union an advocate of a strong patent system which threatened to negatively score any member of Congress who supported H.R. 9.

Regarding the future of patent reform, the article concludes:

In sum, if Trump exerts no influence on Congress, it seems likely that neither the “pro-reform” House bill nor the “pro-patent” Senate bill will go anywhere soon. However, if he chooses—consistent with the above discussion of his and his team’s patent views— to push the latter one, there may be room for bi-partisan compromise to get it passed.

After reading the article, I posed three questions to several insiders who agreed to comment without attribution:

Do you feel that the Trump Administration will be pro-patent? Can you provide any reasons for your opinion?

  • I think it’s too early to tell where the Trump administration will be on patents.  I’m somewhat hopeful, but a bit more on the international scene than domestically.  Wilbur Ross at Commerce should help spur action to protect our inventive companies with patent-oriented business models against Chinese and other foreign abuse of “antitrust” against exclusive IP owners to steal our IP and advantage their own companies.  Making FTC Commissioner Maureen Ohlhausen the acting chairman was a positive move and promising indicator.
  • I  think Mr. Trump’s stance will depend on how the issue is presented.  if the President believes we need a strong patent system to counteract foreign competition I think he might support those policies.  Unfortunately I think it much more likely that he will bow to pressure on drug prices and from Silicon Valley and follow the tendency to support less rather than more patenting.  There is just too much pressure from knowing-nothings who think it an easy target to blame patenting for increased healthcare costs, competition from Asia on electronics etc. for someone who likes to play populist (and who I see no evidence as being a deep thinker on most issues) to buck this trend. Like much of what is written about the President, the article is an exercise in tea leaf reading  that, while providing a good overview of the voices he will hear has little predictive value.  The first month of Mr. Trump’s presidency has shown that he really has no governing philosophy other than wanting to hear the roar of the crowd, and I don’t think we have any way of knowing what policies he will pursue because he doesn’t know himself.
  • Eric Trump’s 2012 column strongly suggests that his father will lean in the same direction.  There are also several high-ranking White House officials who are decided pro-patent and none that are in line with the tech aversion to strong patent rights.  Signs point in a favorable direction.
  • Donald Trump recognizes the importance of the Trump brand, and has turned it into an enormous intellectual asset. He knows that intangibles inherent in intellectual property can drive revenue, economic development, and the creation of new businesses, products and jobs. IP has the potential, more so than any other economic or legal incentive, to make America great again. Given all that, I expect that President Trump will recognize that, and will continue to appoint smart, successful individuals experienced in the business world and who likewise recognize the benefits of a robust and reliable IP regime, and who will reverse the recent trend toward weakening that regime.  
  • We think President Trump is connected to a number of conservative sources, as detailed in the article, some of which have openly advocated for a more “pro-patent” stance than the last Administration.  He also seems focused on showing strength vs. China, so he could take a more “pro-patent” stance if he thinks that there is a systematic problem with cheap Chinese imports infringing U.S. patents. 

What do you make of the decision to retain Michelle Lee?

  • Holding Lee at PTO is a negative signal. It seems that the President is letting this ripen for now.  I hear there are two competing camps.  The Peter Thiel-Jared Kushner camp advocates to keep Lee as an overture to Silicon Valley.  The conservative advisors advocate replacing her on account of some important conservatives who backed Trump in the primaries and in the general election (including Phyllis Schlafly and Matt Schlapp).
  • Michelle Lee has been surprisingly even-handed, notwithstanding her past employment with Google.  She seems to have a genuine appreciation for the importance of patents for innovation. She seems to have “grown in office.”
  • President Trump will get the recommendation of his Commerce Secretary and let the department sort itself out.
  • Michelle Lee has participated in the weakening of our IP system. She has not demonstrated the type of leadership we need to make America great again by leveraging the creative and inventive American spirit. Instead, that spirit, and the willingness to turn it to economic advantage, is in decline. The USPTO needs a strong voice for a strong patent system, and regrettably, Michelle Lee has not provided that voice. 
  • It’s really unclear whether Michelle Lee is still the USPTO Director, and if so, how long that will last.  Therefore, I really can’t comment just yet on how to interpret the current status.

Do you think the Administration and Congress will work together on patent reform this session and if so, what elements are most likely to be addressed?

  • Regarding Congress, it doesn’t seem the White House and “patent reform” leaders in Congress have discussed this much.  Immigration reform and the Supreme Court are much higher priorities for both right now.  Throw in tax reform, trade reform, and regulatory relief across the board, you have a pretty full Congressional agenda.  And there are still drivers for criminal justice reform.  I expect Congress to take elements of anti patent measures, including venue, into its “litigation reform” rubric.  That’s where movement seem the most probable.
  • Patent Reform on Capitol Hill is all but a dead letter.  There is a chance that venue reform might move through one or both chambers, but even that narrow-cast legislation will face substantial headwinds from the small inventor community and others who stand to lose out.
  • This remains indeterminate. It seems the agents aligned with weakening our patent system through more sweeping legislation have set a somewhat more conservative agenda for this Congress. However, we should not assume that this means there will not be action behind the scenes to further erode IP rights. There is too much at stake, and very deep pockets among those who would benefit from such erosion. The IP system is the great equalizer – affording the creative entrepreneur an equal shot at bringing forth the next big thing and reaping rightful rewards. Senators Coons and Durbin are among the few who understand this complicated yet important system, and the potential it affords both society and the individual. We would all do well to listen intently to their views on this issue. 
  • Senator Hatch has already said litigation reform is on the agenda.  While many bar groups are looking to have the Section 101 mess addressed, there are many on the other side of the issue who are committed to maintaining the dysfunctional status quo.  So I see little prospect for the short term.
  • The early indication is that not much will happen on the legislative front in the near term, except possible venue reform, which seems to depend on the outcome in TC Heartland.  In the longer term, we wouldn’t be surprised to see some of the recent comments from David Kappos, IPO, AIPLA, and others on Section 101 gain traction.

While the patent policy fight is usually framed as the clash between giant industry interests or philosophical debates on the nature of innovation, one respondent chose not to answer my questions. Instead, he starkly captured the reality of the current patent system to many entrepreneurs:

My company has gone from being worth over $30 million, to virtually nothing (had a signed letter of intent).  I am working 100 hour weeks for free, and we will likely go bankrupt, because the potential buyers know they do not have to buy, when they can just take all the fruits for free. [Why buy a house when you can just move into someone else’s and no judge in the courts will protect the home owner?]  The loss of the patent injunction has been catastrophic.  The cost of patent litigation is out of reach for small businesses.  There is no way to enforce a patent, and if you try, the “killing squads” of the PTAB will make sure you cannot by invalidating the patent. Michelle Lee has made sure inventors pay high prices to get a patent that she can then  use the money to fund the PTAB to invalidate the patent she just granted.  It is a horrible situation for any inventor when all three of the branches of Government are doing all they can to kill inventors. My recommendation: stop inventing in America.  It has become impossible.

I certainly hope that Trump will make things better.  If he doesn’t start protecting patents, small businesses will continue to die faster than being born. This will lead to continued job losses and low paying jobs.  If he wants to “Make America Great Again,” he needs to start with protecting property rights, and most importantly patents, which create wealth.

Like other issues facing Congressional gridlock, efforts to strengthen our patent system hinge on the involvement of President Trump. Let’s hope messages like the one above cut through the clutter to reach him.

 

The Author

Joseph Allen

Joseph Allen is a Featured Contributor on IPWatchdog.com, and a 30-year veteran of national efforts to foster public/private sector commercialization partnerships, and author of numerous articles on technology management for national publications.

Joe served as a Professional Staff Member on the U.S. Senate Judiciary Committee with former Senator Birch Bayh (D-IN), and was instrumental in working behind the scenes to ensure passage of the historic Bayh-Dole Act. He is our resident Bayh-Dole expert, and will write frequently about Bayh-Dole and issues surrounding the commercialization of university research.

In 2008, Joe founded Allen & Associates, through which he offers consulting services assisting clients in technology transfer issues, including developing effective communication strategies with national policy makers.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 57 Comments comments.

  1. Curious February 27, 2017 9:54 am

    The only thing that can be said for certain is that the uncertainty regarding Lee’s continued tenure at the USPTO means that there is a tug-of-war being waged at high levels within the Trump administration.

    Under normal circumstances, she would have been tossed to the street as soon as Trump became president. The fact that she wasn’t means that someone(s) wants to keep her. However, the fact that she hasn’t formerly retained her job means that someone(s) aren’t signing off on keeping her.

    I guess it all comes down to whether Google, Facebook et al., have any leverage in the Trump Administration. If they do, Lee will be retained. If Trump has had enough of them, perhaps we’ll see somebody at the USPTO that will be a strong advocate for ALL intellectual property.

  2. Caesar Salazar February 27, 2017 10:04 am

    Will the Trump Administration Be Pro Patent?

    Like always, it depends on what you mean by that statement. If you mean pro-patent in a maximalist sense, then likely not according to some people. However, if you mean pro-good patent but anti-bad patent, then it seems more likely. The recent changes we have seen in the patent system were ostensibly meant to root out “bad” patents while strengthening “good” patents. This change has been tough for a lot of people, but perhaps it’s like pruning flowers. You gotta cut some in order for the plant to flourish.

  3. Stephen Curry February 27, 2017 10:51 am

    @2 “The recent changes we have seen in the patent system were ostensibly meant to root out “bad” patents while strengthening “good” patents. This change has been tough for a lot of people, but perhaps it’s like pruning flowers. You gotta cut some in order for the plant to flourish.”

    The above point is gross mis-understanding of patent theory. You sound just like Colleen Chien in santa clara. Cut it out, Salazar.

  4. Paul Morinville February 27, 2017 10:56 am

    Caesar, You use the term “bad” patent and “good” patent. Can you define what you mean?

    I suspect the inventor whose company went from $30M to zero would like to understand what that distinction is exactly.

  5. Paul Morinville February 27, 2017 10:58 am

    Joseph, Thanks for rounding this up. That last quote from the entrepreneur/inventor is all too common and one I can relate to personally. The last few years have been a complete wipe out of startup companies based on patented new technologies.

  6. IPdude February 27, 2017 11:00 am

    Keeping Lee will be very telling on what the administration’s policy on patents will be.

    Caesar @2 – it also depends on who defines “good” and “bad” patents. The definition depends on which special interest group wins. Unfortunately, we will never have balance because whoever is able to push their agenda tends to go for it all. To say that the Google/Lee administration was fair and balanced in rooting out bad patents is intellectually dishonest and, frankly, reveals your hand. And that’s my point. There are two opposing camps and compromise is not likely. It’s a looters mentality. The real losers: startups, jobs, middle class, American innovation.

  7. Night Writer February 27, 2017 11:43 am

    IMHO we aren’t going to get a strong patent system without PACs. Just look at the “reformers” in Congress, and often if not always, Google is one of their biggest donors. This doesn’t even include the dark money.

    I think this is what we are fighting. I think we can argue until we are blue in the face, and it won’t count for anything as long as we aren’t contributing to their campaign fund.

  8. Paul Morinville February 27, 2017 12:22 pm

    Night, I’m not sure that is true. It would help, which is an unfortunate reality. But from my experience visiting offices, I think there are more than half that are not bought off. And I know that small inventor voices resonate through the halls.

    It can be turned back with activism. It cannot just by writing articles and posting comments on blogs. A passive approach will not work. It will take actual people standing up and saying something to their representatives at home, in congress, to the media and at rallies.

    We want to get a rally at the USPTO (as soon as all the paid protests subside) of inventors protesting the USPTO. About a dozen inventors have committed to burn their patents on the steps of the PTO. I am one.

  9. SV inventor February 27, 2017 1:47 pm

    Just as tech entrepreneurs and startup founders take an incredible risk and leap of faith, toiling for years and bootstrapping with no income to commercialize technology, I think it’s time for attorneys to help fight this fight, too. We are all in this together. If we believe in the fundamental value of patents as the codified framework for the American ideal to protect technology as intellectual property, why aren’t patent attorneys taking up the mantle in the way inventors do? Tactics of big business aside, the reason it costs in excess of seven figures to litigate patents is attorney fees.

    It seems that rather commiserate with each other or lobby lawmakers already beholden to special interests, the power of many attorneys lies in litigation. If each patent attorney could identify one portfolio that could help swing the pendulum back toward patent rights–and offer to litigate pro-bono or charge only if licensing/royalty fees are recovered–that could make the biggest difference of all. Attorneys’ business is at risk too. So why continue to make fees prohibitive for inventors? To some degree, you’re hurting yourselves here. Only court decisions that serve as precedent will start to turn the tide, and only good lawyers can help the courts arrive at those decisions.

    Sitting around and waiting for this administration or the next to set policy while doing nothing to fight the fight seems the height of complacency and admitting defeat accomplishes nothing.

  10. Curious February 27, 2017 2:00 pm

    Caesar, You use the term “bad” patent and “good” patent. Can you define what you mean?
    Just from reading a couple of his comments, I presume that a “good” patent is one that he owns, and a “bad” patent is one that is being asserted against him.

    I suspect that Caesar is a nom de plume of some troll that Gene has kicked out of this blog at some time another.

  11. Caesar Salazar February 27, 2017 2:15 pm

    Stephen Curry @3,

    While you can disagree with my observations, calling me someone else (Colleen Chien) is unprofessional.

    Curious @9,

    Ditto. I said nothing of the sort. In your own words, you are “presuming.” Please try to be more civil and professional when commenting on this esteemed forum.

  12. Caesar Salazar February 27, 2017 2:18 pm

    @Paul and @IPDude,

    Paul, it seems reasonable to follow the statute and guiding court interpretation here. A “good” patent is patent eligible (i.e. doesn’t pre-empt a field of scientific endeavor), novel, non-obvious, enabled, definite, and contains a written description and best mode. Any one of those things lacking and it is a “bad” patent.

    IPDude, I agree that in our current climate it depends on who defines the terms. However, it shouldn’t be hard to agree on a general definition using what I wrote in response to Paul.

  13. Stephen Curry February 27, 2017 3:07 pm

    @10
    Caesar, I did not call you Chien.
    I said you sounded like Chien.
    That is because your analogy of pruning bad patents is the same as pruning trees is the same analogy that Chien writes about and talks about publicly.
    You are over-sensitive Salazar. Learn to read, Caesar.

    By the way, Michelle Lee and Colleen Chien were influenced by or even mentored by one common guy known as Mr. Bilski (san francisco former google main outside patent prosecution counsel and articles contributor to IP watchdog). it is just amazing that a corporate entity in mountain view produced the leading champions of the disaster known as the AIA.

  14. IPdude February 27, 2017 3:10 pm

    Caesar @11

    I think what we can agree on is that It is difficult to agree on definitions. That is what is often litigated…definitions or words. For instance, there is plenty of ambiguity in the AIA and M. Lee was able to interpret and define words to appease her sponsors by being over broad in some instances and narrow in others. The net objective and result was the invalidation of plenty of “good” patents. The fact that Lee and her sponsors want to her to work for an administration they despise is very telling of their objectives. They want Lee to continue being a shill and kill patents that pose a threat to big tech. It’s really that simple. So, I respectfully disagree.

  15. Kevin R. February 27, 2017 3:29 pm

    Call me hopeful, but I’m looking for small, phased changes proposed and nuanced interpretations from the Trump administration. I’m almost happy that President Trump has not given a lightning-rod-take on patents yet,

    That said, I think we’re going to see some things bubble to the surface fairly soon w/ venue reform, chevron deference in IPRs, drafted 101/Alice bills, SEP damages, and recent injunctive relief cases. I hope the White House looks at the cost/benefits on a case-by-case and doesn’t advocate for the “sweeping change” in patents of the last administration.

  16. Anon February 27, 2017 3:30 pm

    The use of the term “maximalist” is interesting.

    I know of only one other person that tries to distinguish patent law along those lines, and the person is the premier “Tr011” (the bad kind 😉 ) across ALL patent blogs.

    I am curious as to what you particularly mean, Caesar, in your use of the term.

  17. Caesar Salazar February 27, 2017 3:52 pm

    Anon,

    I mean it in the sense that the right is not unbridled. Take the First Amendment for example; it doesn’t protect yelling “fire” in a crowded theater or threats of violence. Another example is enjoyment of real property. I can’t blast music at 3AM even though it’s on my property because it would be a nuisance to neighbors. What one must understand is that what we call “rights” are actually more nuanced and balanced with other rights.

    Thus what I meant by a maximalist point of view is that a patent doesn’t confer any absolute rights. They are always balanced with other rights. Take the repair vs reconstruction distinction (See, e.g. Jazz Photo Corp v. Int’l Trade Comm’n, 264 F.3d 1094, 1101 (Fed. Cir. 2001)). In this vein I know there is much debate over whether small-town farmers are allowed to repair the tractors they purchased when those tractors contain advanced electronics that prevent them from doing so. I believe the Library of Congress also stated that a purchaser has a right unlock their phone. Similar counterparts can be found with respect to fair use in copyright law.

    Finally coming back to my original comment, those that are “pro-patent” in a “maximalist” sense either seem to ignore or wholeheartedly disagree with these nuances. They believe that a patent, once conferred, gives them license to do as they please. When it is later invalidated as what many people say are “patents that should never have been issued,” they recoil with accusations of unfairness and due process. An apt analogy is the recent controversy over Columbia University mistakenly sending out acceptance letters for graduate students, only to retract them later as mistakes (https://www.nytimes.com/2017/02/17/nyregion/columbia-grad-school-acceptance-letters.html). Clearly in this situation it was a mistake to send out those letters, but it in no way conferred on the students a “right” to attend Columbia. In essence it is very similar to the invalidation of a patent. A grad student “maximalist” might very well say that the mere issuance of the acceptance letter binds Columbia, but a more nuanced view would suggest the opposite. You can’t give away what you don’t have.

  18. Paul Morinville February 27, 2017 4:19 pm

    Caesar, It first, I thought you might be a lawyer and would have some understanding of the law that I don’t have, just as many others commenting here do (Anon for example), and therefore I may be able to learn from you.

    To compare a property right to a acceptance letter tells me that you either don’t understand law or you are going to great lengths to warp law to suit your argument. This much I do know… property rights and contracts and your smearing the two together makes a real mud puddle of the law.

  19. Caesar Salazar February 27, 2017 4:25 pm

    Paul,

    It is not a comparison meant to map concept for concept to patent law. It was merely an illustrative analogy. It is not uncommon for lawyers to engage in these kind of intellectual hypotheticals. In a sense it is part of the Socratic method taught to lawyers across the country and (maybe?) the world.

  20. Paul Morinville February 27, 2017 4:50 pm

    Caesar, So you do know that contracts are not property rights. Perhaps a better example could be used. Let’s do a parallel comparison of property rights to property rights.

    You camp out in my living room. Throw a tent, take control of the TV remote and eat the pizza in my fridge. I call the cops to have you evicted.

    Scenario one: (the quaint one that existed ten years ago) The cops arrest you for violating my property rights and I live happily ever after, even though I am out a good pizza.

    Scenario two: (today’s patent law) The cops let you stay. You file in an Article III court favorable to tenants to declare my house public property, which allows you to stay. At the same time you petition HUD to have my deed invalidated and you dog pile me with a bunch of friends filing separate HUD complaints do drive my cost so high that I may be forced to just walk away. The Article III court stays the case pending the decision of HUD employees who will have to give you back 75% of your petition fee if they do not accept the petition. And accept the petition they do, which biases the decision to invalidate my deed because the same judges that accepted it decide it. HUD burns five years and costs me more than the house. All the while you gradually take over the bedrooms, bathrooms, closets and litter my backyard with dirty used car parts and partially repaired motorcycles. HUD invalidates my deed leaving me homeless. You go on living happily ever after and I file bankruptcy.

    Now that we have compared property to property, we can have a real discussion.

  21. Caesar Salazar February 27, 2017 4:57 pm

    Paul,

    Good analogy. However I would make a few tweaks. Let’s discuss scenario two as that is the relevant one. By petitioning HUD to have your house invalidated, there are two sub-scenarios.

    One: the house was actually your house and you had legitimate property rights to it.

    Two: the house was not actually your house, nor did it belong to anyone. It was part of the commons ostensibly owned by all citizens.

    You seem to advocate that all scenarios are like sub-scenario one. However, there are many cases where it is actually like sub-scenario two. The deed was deficient ab initio. There was never really a property right because there couldn’t be one. This is the subtle distinction between “bad” and “good” patents. “Bad” patents are akin to having a deed that you should never have obtained in the first place, whereas “good” patents are legitimate deeds because you legitimately own the property.

  22. Gene Quinn February 27, 2017 5:16 pm

    Caesar-

    You say: “There was never really a property right because there couldn’t be one. This is the subtle distinction between “bad” and “good” patents.”

    What standard are you using to make that determination? The PTAB standard that ignores the statutory presumption of validity? In district court patents are presumed to be valid, which is required by the law. It should also be true at the PTAB since they are a tribunal seeking to strip a vested property right that has been paid for and rightfully acquired upon approval by the federal government.

    Your argument would hold more merit if patents were presumed valid as required under the Patent Act. But when you don’t provide the presumption of validity all the PTAB is doing is second guessing the patent examiner and coming to a different determination. So they are taking away a vested property right that was paid for.

  23. Paul Morinville February 27, 2017 5:23 pm

    Caesar, Here is where you and I diverge. First I get your point. An illegitimate right is not a right. So you are really arguing that patents duly and legally issued by the USPTO are illegitimate and should be invalidated. Because no human endeavor can every be perfect, some patents will absolutely pass through that should not. We can agree here.

    However, we stop agreeing when you position patent rights as anything but a property right. That starts in the Constitution where the sole enabling description of a patent is an “exclusive Right”. This is the very essence of a property right. That is followed up with black letter law and hundreds of years of precedent stating that a patent is in fact a property right.

    The takings clause demands due process in taking a property right, which means a jury in an Article III court. Article III courts and juries have always invalidated patents that should not have been issued. Court procedures made this difficult, but that is how invalidating property rights is supposed to be. If it is easy to invalidate, nobody invests in property because they can lose everything the invest. Importantly, this also insulated invalidating patents from political winds.

    All of that has changed. Even though patents are property rights, they are no longer treated as such. They are now being invalidated in the executive branch, which by its very nature is political. The patents that you say should be invalidated because they are the swamp, are invalidated under a politically motivated system designed to invalidate them and geared to promote the invalidation of them. In fact, more than 95% of patents subjected to PTAB reviews have at least one claim invalidated. Given these claims are selected by the infringer, invalidating just one claim likely neuters the entire patent.

    I completely lose you and find you biased to the point of lacking credibility when you say that all they are invalidating are bad patents. The patents they invalidate are almost always in litigation. They are commercially viable and important patents. Sure there may be a few that should not have been issued as previously stated, but you have to admit that it is not possible that 95% of the commercially viable patents are bad patents.

  24. Caesar Salazar February 27, 2017 5:36 pm

    Gene,

    It makes sense for there to be a presumption of validity in district court because the courts do not want to get involved in the technical details and rightly so. They aren’t experts in determining what is eligible, novel, non-obvious, etc. However the PTO can reasonably argue that it can make that determination in order to determine if it messed up. To give them two standards would seem out of whack. If they use the same standard that the examiner used, it makes more sense. In a sense they are second-guessing the examiner, but the crucial point is that they are doing in a territory where they are “experts” with respect to the subject matter. Hence why is it called a “reexamination.” It is not too dissimilar to an appellate court reviewing questions of law de novo while deferring to questions of fact. To give the PTO a different standard for re-examination would be akin to telling an appellate court to defer to a lower court’s interpretation of strictly legal, not factual, questions.

  25. Caesar Salazar February 27, 2017 5:54 pm

    Paul,

    I see what you are saying, but as of late, I believe the Federal Circuit has not overruled it’s decision in Patlex, in which is stated:

    In contrast with the private rights at issue in Northern Pipeline, the grant of a valid patent is primarily a public concern. Validity often is brought into question in disputes between private parties, but the threshold question usually is whether the PTO, under the authority assigned to it by Congress, properly granted the patent. At issue is a right that can only be conferred by the government. See Crowell v. Benson, 285 U.S. at 50, 52 S. Ct. at 292.

    It didn’t expressly disavow it in the MCM case, which was subsequently denied cert. by SCOTUS late last year. Thus it could be argued that under current law, a patent right is a public right.

  26. Anon February 27, 2017 6:10 pm

    Caesar at 17 – your analogy does not reach what actually happens when a patent is granted.

  27. Anon February 27, 2017 7:23 pm

    Caesar at 24,

    You provide a false reason for the statutory presumption.

    That may fit your narrative to a degree that you prefer, but that just is not how the law reads.

  28. jbavis February 27, 2017 7:37 pm

    Caesar @ 17:

    “I mean it in the sense that the right is not unbridled. Take the First Amendment for example; it doesn’t protect yelling “fire” in a crowded theater or threats of violence.”

    Yet that is exactly what the anti-patent gang did to get AIA enacted – claiming that patents were killing innovation despite that the majority of innovation was coming from the U.S. and enabled by the U.S. patent system (ie. Google starting from nothing yet Gates@Microsoft not being able to a damn thing largely thanks to those 2 patents filed before the google.com domain name was even filed).

    If that’s not yelling fire in a crowded theater by the anti-patent gang than what was it?

  29. jbavis February 27, 2017 7:56 pm

    Night Writer @ 7:

    “IMHO we aren’t going to get a strong patent system without PACs. Just look at the “reformers” in Congress, and often if not always, Google is one of their biggest donors. This doesn’t even include the dark money.”

    Perhaps it’s time to look for friends to unite with. Look for others with the same enemy. Google have made many many enemies – authors and book publishers weren’t happy at all with Google OCRing all the books. Musicians aren’t happy with blatant pirating on Google’s Youtube. News sites and magazines aren’t happy with having to comply with Google. Etc, etc, etc.

    What they along with inventors have in common is creating IP. Trump seems to recognize the value of IP (or at least Trademarks) – how can we convince him that software and hardware and all the other inventions are equally if not more important in bring back jobs?

  30. Curious February 27, 2017 8:01 pm

    Breaking news: Wilbur Ross was just confirmed as Commerce Secretary. With this hurdle out of the way, I suspect that we’ll see more movement (and hear more rumors) regarding Lee’s continued tenure (or not) at the USPTO.

  31. Caesar Salazar February 27, 2017 10:16 pm

    Anon @26-27,

    The analogy may not be perfect, but that is why it’s an analogy.

    As to how the law reads, the AIA allows for re-exam procedures and certain decisions are non-appealable. SCOTUS and CAFC have clarified this as well. See my post @25.

  32. Gene Quinn February 27, 2017 10:19 pm

    Curious-

    Latest rumor is Lee is heading to White House to head OSTP. So she may wind up micromanaging whoever is selected to be the next Director, which if that is the case may wind up significantly limiting those interested in the job (just guessing).

    -Gene

  33. Gene Quinn February 27, 2017 10:22 pm

    Caesar-

    It might make sense to you to have no presumption of validity at the USPTO, the problem is the statute simply says once patents issue there is a presumption of validity. The only time that hasn’t been the case is when there is a reexamination or reissue, both of which are applications. Although you keep calling post grant challenges reexamination, that is not correct. Post grant challenges are not an examination or reexamination. There is no examination and no opportunity to amend claims, only a litigious challenge to claims. In that situation a presumption of validity absolutely is required.

    -Gene

  34. Caesar Salazar February 27, 2017 11:37 pm

    Gene,

    I believe an opportunity to move to amend claims is present in the statute. Thus there is an opportunity to amend.

  35. Benny February 28, 2017 5:46 am

    Quoted- ” if the President believes we need a strong patent system to counteract foreign competition I think he might support those policies”
    Huh? The foreign competition (er…me too) files US patent applications. So how is that supposed to work?

  36. Eric Berend February 28, 2017 6:44 am

    Why should anyone here, suffer further harassment from the commentator known as “Caesar Salazar”?

    I think that with the dedicated hijacking of various comment threads, to at least a dozen articles so far; the staunch, obdurate advocacy for the supposed correctness of the PTAB proceedings, in which even their own statutory rules are routinely ignored; and now with the usage of the virulently pro-infringer term “patent maximalist”: it is now evident, that the commentator posting as “Caesar Salazar” is a more sophisticated version of “Invent0r W0es”, “M0lly”, and others of this ilk before them.

    These ungracious provocateurs see nothing but a socially stigmatized “enemy” to abuse, without bringing even a shred of principled opposition; and bearing numerous instances where their comments do not proffer to others in this community, the respect with which they and everyone else here, is expected to be treated.

    Furthermore, the time and efforts of good and concerned minds of standing here, is wasted in nonsense repartee with this demagogue. Therefore, I must respectfully ask the moderator, Gene to ban this person from posting future comments to this forum.

  37. Anon February 28, 2017 7:34 am

    Caesar, your attempts still fall short, and an improper or incomplete analogy is just NOT why an analogy is used (your “offer” of “of course it is not perfect” fails to provide reason, or make up the miss of the analogy itself).

    What this equates to is attempts to spin things when you do not have a basis for doing so.

    You attempt at 34 is likewise unfruitful. There can be – and should be – no mistake in recognizing the difference of what the AIA provides: the mere possibility to ask for an amendment – and what Gene Quinn is discussing: the affirmative right <b.to make an amendment.

    The right to ask is just not the same as an actual bono fide opportunity TO amend.

    You have provided enough reading and cases to show that you understand the difference, and you continue to play coy with your deliberate parsing of words and “analogies” that tend more to obfuscate than to clarify (and please, do not take the coy route of misrepresenting the word coy or cute as you have now done twice – the context here speaks for itself).

    As it is, your post at 31, referencing a previous post at 25, STILL begs to try to introduce an answer as somehow being “blessed” by the courts that has not yet been asked of the courts. You simply do not have the legal position that you seem to claim to have, and that you continue to use as a jumping off point to even more questionable positions of law.

    Eric,

    I would not go so far as to call for an outright ban for this latest in the string of provocateurs.

    You note the very same thing that I noted previously, there is likely no coincidence behind the string of increasingly complex “attacks” here, and in my view, one possible end game is to prod Gene into putting in place the very “bar” that you are suggesting, so that the anti-patent folks can turn around and demonize Gene and this blog for banning someone – who on the surface – has been polite and “attempting” to converse, but who “merely” has provided counter views.

    The problem of course for Caesar is that he has been TOO clever, and that his politeness does not mask what amounts to deception and obfuscation in his attempts to portray alternative views.

    Instead of yelling and screaming – which is the desired “reaction,” I have provided the rational – and unyielding – counterpoints explaining to Caesar why his responses fall short. You should note that he has never gone back and addressed the actual pertinent points once they have been explicated.

    While staying polite, Caesar does continue to provide a lure of half truths and misshaped analogies and the like. So while a ban may be in order, think of this as an opportunity to sharpen your own critical thinking.

  38. FRANK LUKASIK February 28, 2017 8:05 am

    During his campaign I sent him the issues that I thought were important as argued in the Supreme Court (Lucree v. US): (1) First-To-File;
    (2) Expiration of Patents for Non-Payment of Maintenance Fees.

  39. Curious February 28, 2017 8:57 am

    I believe an opportunity to move to amend claims is present in the statute. Thus there is an opportunity to amend.
    LOL — how long have you had your head in the sand? This issue has been beaten to death on this blog … the “opportunity to amend” is an illusory one. For you to even raise that point on this blog is evidence, to me, that you really don’t understand the crowd you are playing to.

    While staying polite, Caesar does continue to provide a lure of half truths and misshaped analogies and the like. So while a ban may be in order, think of this as an opportunity to sharpen your own critical thinking.
    I agree. Caesar can prove to be a useful foil.

  40. Gene Quinn February 28, 2017 12:08 pm

    Caesar @34-

    You say: “I believe an opportunity to move to amend claims is present in the statute. Thus there is an opportunity to amend.”

    You are correct that the statute is very clear. Applicants have the right to amend.

    You are absolutely 100% wrong when you say there is an opportunity to amend. The PTAB refuses virtually every motion to amend despite there being a right to amend. That is the big question in front of the Federal Circuit in Aqua Products. See:

    http://www.ipwatchdog.com/2016/12/04/federal-circuit-en-banc-aqua-products-ptab-amendment-practice/id=75162/

    http://www.ipwatchdog.com/2016/12/11/aqua-products-federal-circuit-ptab-amendment-practice/id=75610/

    -Gene

  41. Anon February 28, 2017 12:55 pm

    Gene,

    I think that you misstate what Congress has provided.

    The right to ask is just not the same as the right to have. The AIA just do not provide that right that you would like to have.

  42. Caesar Salazar February 28, 2017 1:15 pm

    Gene,

    35 USC 316(d)(1) and 35 USC 326(d)(1) both provide that a patent owner may file one motion to amend.

  43. Caesar Salazar February 28, 2017 1:16 pm

    Anon is right that there is no right to amend, rather just an opportunity to amend, which is your words from post @33.

  44. Anon February 28, 2017 6:17 pm

    Caesar,

    Your restatement needs a little fine tuning: the opportunity is in the asking only – NOT in the amending.

    There is no such “opportunity to amend.”

    There is an opportunity to ask for an amendment.

    This is not a pedantic difference, but rather is a substantive one since there is zero requirement for the PTAB to grant the request – no matter how good the request is.

    The applicant is limited to asking, and has no power beyond that, and thus, no right of expectation that the asking will bear fruit.

  45. Gene Quinn February 28, 2017 6:57 pm

    Caesar @42 and @43-

    I know what the statute says, but what you don’t seem to know is how the PTAB interprets that statute. Anon @44 is exactly correct. As crazy as it may seem given how otherwise clear the statute seems to be, there is NO right to amend. There is only a right to ask for an amendment.

    This is why post grant proceedings should be unconstitutional, and SCOTUS is considering taking that argument. See:

    http://www.ipwatchdog.com/2017/02/27/scotus-invites-michelle-lee-respond-oil-states-ipr-petition-certiorari/id=78866/

    The only time that the Patent Office has been allowed to review an issued patent is in an examination proceeding, where amendments are as a matter of right. In post grant proceedings they are not given as a matter of right and routinely denied in upwards of 98% of cases.

    So a right without a remedy isn’t a right. So it is incorrect to say that there is a right to amend. There is no right to amend and amendments are never granted. Those are the facts.

    -Gene

  46. Caesar Salazar February 28, 2017 8:33 pm

    Gene,

    I never said there is a right to amend. I just said there is an opportunity to amend. I’m aware of the difference. I’d be interested to see how this is ruled on. It depends on whether a patent is a public or private right. In the MCM case, CAFC stated that patents are public rights and thus the seventh amendment is no barrier. SCOTUS denied cert so it could be an implicit acceptance of that holding.

  47. Anon February 28, 2017 9:16 pm

    Caesar,

    The opportunity has nothing to do with private/public.

    Your statement is just not correct. The opportunity to ask is just not the same as opportunity to amend.

  48. Anon February 28, 2017 9:18 pm

    Further Caesar,

    You cannot read into a denial of cert that which you attempt to do.

    Denial of cert simply does not entail that – and such is clear legal error.

  49. Caesar Salazar February 28, 2017 9:23 pm

    I know you can’t read into a denial of cert as a definitive precedent. Hence why I said “it could be an implicit acceptance of that holding.” SCOTUS may be thinking along these lines. Additionally, the opportunity does have to do with the public/private debate. If public, then there is more leeway for administrative agencies to decide upon procedures, including whether there is a right to amend or an opportunity to amend. The statute is clear, that much is known, that there is an opportunity to amend. Whether there is a right is not clear.

  50. Caesar Salazar February 28, 2017 9:25 pm

    The question is whether the term “opportunity to amend” means 100% permission to amend or the right to ask to amend. The statute states that a patent owner may “move to amend.” Now what does that mean? Does it mean “move to amend” as in “ask” to amend, or given 100% permission to amend?

  51. Caesar Salazar February 28, 2017 10:22 pm

    Guys,

    If you listened to Trump’s speech to Congress just now, here’s a snippet that was interesting:

    On our 100th anniversary, in 1876, citizens from across our Nation came to Philadelphia to celebrate America’s centennial. At that celebration, the country’s builders and artists and inventors showed off their creations.

    Alexander Graham Bell displayed his telephone for the first time.

    Remington unveiled the first typewriter. An early attempt was made at electric light.

    Thomas Edison showed an automatic telegraph and an electric pen.

    Imagine the wonders our country could know in America’s 250th year.

    Think of the marvels we can achieve if we simply set free the dreams of our people.

    Cures to illnesses that have always plagued us are not too much to hope.

    American footprints on distant worlds are not too big a dream.

    Not much on the patent system per se but it seems that he wants a Renaissance of technological progress.

  52. step back February 28, 2017 11:09 pm

    if we simply set free the dreams of our people“?

    Wow.
    Who knew?
    I’m setting my dreams free tonight.
    I hope you all simply do the same with yours.

    Once the spirits of our dreams are streaming across the ethers, over the flapping flags of red white and blue, and ‘ore ample plains of amber grains of this great again country of ours, everything will be more than terrific and great again. Believe him. I do. With all my human ingenuity, fundamental building blocks and unthwarted motive principles. 😉

    https://patentu.blogspot.com/2016/06/spirit-town.html

  53. Anon February 28, 2017 11:36 pm

    Caesar,

    You do not seem to get (which is why you are being tagged as a Tr011) the fact that your playing with language is just not kosher.

    Your attempt in reply to twist what I say about denial of cert to still somehow reach your point is simply not proper under the law.

    There is NO “could.” I am sure that you understand what legal error means, but yet you persist – in error.

    Your attempt at “may be thinking” is pure fantasy. It is just not grounded in any sense whatsoever of any legal sense, and amounts to no more than pedantic semantics.

    Your leash is already tight – is it your aim to be yanked completely?

    You then turn around and yet again misrepresent that which is clear concerning what “opportunity” means.

    If you are going to continue to play games after what opportunity means in the context of the law under discussion, then you will be banned in very short order, and no one is going to miss you, or even what I think you are (giving you a VERY generous benefit of the doubt) trying to do with such “Devil’s Advocate” tactics.

  54. Caesar Salazar March 1, 2017 7:22 am

    Anon,

    It is completely reasonable to try to predict how a court may be thinking. In fact this blog does it often (see JP Morgan software article, the whole thing is about how JP Morgan’s SW wouldn’t be patent eligible). To say that such thinking is “error” is an error in and of itself. As to my “leash” being tight, I am aware of no warnings or censures of such a magnitude directed towards me by the moderators of this blog. It would be delusional to think so. There have only been disagreements, whether real or perceived, between certain commentors on this blog. Not any warnings to ban me. Such bullying tactics, i.e. that one is on a short leash when there is no evidence, are beneath you.

    Gene, I implore you to censure Anon for his multiple indiscretions.

  55. Anon March 1, 2017 1:28 pm

    Another prime example of your pedantic semantics, Caesar.

    I have stated my views and nothing more. There is no threat as it is known (or should be known) that it is not I that enforces the rules on the blog. To intimate that my guidance to you is a threat and an indiscretion is pure spin.

    If somehow one of my characterizations of you is off, we can discuss that particular. I know that you will not do so, because my characterizations are NOT off.

    Your attempted ploy here of “a judge could be thinking of anything, this anything is fair game” is simply a fallacy, and a ruse that seeks to prove too much. Sorry, but no, this is just not the forum for such “anything goes.”

    You should be aware of that by now.

  56. Tess Thomas March 2, 2017 10:48 am

    The last respondent’s quoted response resonated with me.
    I’ve invented in America and fully agree with, “…all three of the branches of Government are doing all they can to kill inventors. My recommendation: stop inventing in America. It has become impossible.”
    The military/its researchers, especially, prey on small businesses.

    I often wish I never had invented. It means dealing with the bullying, jealousy, and hatred of this part of society. It means being launched into politics as the underdog.

    I responded on Techno-l. I understand not wanting that forum to become political. But, it generates an elephant in the room. Patents are extremely political, as evidenced by wondering what the Trump Administration will do for patents.
    If you have to ask…