Senate confirms dozens of Trump nominees, including new IP Czar

By Gene Quinn
August 4, 2017

Vishal Amin, the newly confirmed IP Czar, during his confirmation hearing.

On Thursday, August 3, 2017, the United States Senate, through a deal brokered by leaders McConnell (R-KY) and Schumer (D-NY), voted out dozens of Trump nominees under a unanimous consent agreement. Under this procedure there is no individual or “roll call” votes or floor debate on a nominee. There was, however, some “hipster” controversy.

Despite the nonpartisan conclusion to this slew of nominees there is an interesting partisanship between Hollywood and Silicon Valley emerging. With the tech industry ramping up their lobbying spending during the first six months of the Trump Administration and with reports indicating that patents remain a top priority, the next six months may reveal areas of common ground and further division for industries and companies. During the next six months there will be activity on trade with China involving IP. Congress will turn to tax reform and will need to find new areas for cuts and revenue increases now that ACA reform has not yet happened. Patent reform legislation could move given the attention to PTAB abuse by the US Supreme Court, with the High Court granting cert in both SAS Institute and Oil States, see here and here, respectively.

Of particular note for the intellectual property community, Vishal Amin was confirmed to be the IP enforcement coordinator at the White House and Peter Davidson was confirmed to be general counsel at the Commerce Department.

Amin had been a lawyer for Congressman Lamar Smith (R-TX) working on the AIA and then for Congressman Bob Goodlatte (R-VA) working on the Innovation Act. Therefore, Amin has been in the middle of IP legislation since President Obama took office in January 2009. Before that he worked in the Bush White House and Commerce Department on patent reform and IP issues.  Amin generally favors the Patent Trial and Appeal Board (PTAB) and going after patent trolls. He has been strongly endorsed by the film, music and traditional copyright interests, which puts him at odds with the tech community on copyright, Internet freedom and even, perhaps, cybersecurity issues (think proposals from Hollywood to enable proactive hacking to stop circumvention of copyright protection measures). Because of his support for the PTAB and close association with the AIA and Innovation Act the independent inventor community opposed Amin for this position, which is sometimes referred to as the IP Czar.

Davidson, a former lobbyist for Verizon, USWest and Qwest, was also general counsel for the US Trade Representative and head of policy for then House majority leader Dick Armey (R-TX).  Davidson also clerked on the 10th Circuit. Given the role Commerce Secretary Wilbur Ross now plays on trade issues and given the news this week of Trump going after China on trade violations including patents, Davidson’s USTR background should keep him involved in this front line issue.

Another nominee confirmed yesterday that is definitely worth noting and so far ignored by POLITICO, IPO, AIPLA and others is Michael Platt, Assistant Secretary of Commerce for Legislative & Intergovernmental Affairs. Platt comes to the job with a rich experience in government and industry working with all sides of the IP debate.  He was chief of staff for Congresswoman Marsha Blackburn (R-TN) who tirelessly advocates for artists and creatives from Nashville and nationally. According to the White House, Platt also “helped direct bi-partisan advocacy promoting the creative and financially viability of artists and major music companies for the Recording Industry Association of America.” Platt also understands Silicon Valley thanks to his time working for TechNet. The Assistant Secretary for Intergovernmental Affairs has played a key role in patent reform in years past.

The “hipster” controversy yesterday has to do with the delay of Makan Delrahim, the nominee to head up the Antitrust at the Department of Justice.

Senator Hatch (R-UT), Delrahim’s former boss, loudly protested on the Senate floor, accusing Democrats of holding up Delrahim by using “hipster” antitrust views to apply scrutiny to deal approvals and to the growing power of the large tech companies.

Another exception from yesterday’s confirmation blitz was Noel Francisco, Trump’s nominee to be Solicitor General.  He was acting Solicitor General early on for Trump and then left that post when nominated, as required by Supreme Court precedent.  He is a former Jones Day partner, the same law firm as Don McGahn, who is now Trump’s campaign general counsel and is now White House Counsel. Perhaps noteworthy for the patent industry, Jones Day also represents SAS Institute in their lawsuit challenging whether the Patent Trial and Appeal Board (PTAB) must issue a final written decision on all claims challenged, as is required by the statute. SAS Institute v. Matal will be argued against the USPTO at the Supreme Court during the October 2017 term.

 

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

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 39 Comments comments. Join the discussion.

  1. stevec August 5, 2017 7:47 am

    Any movement in the rumor mill as to a PTO director? PPAC was a lot of we aren’t moving forward on anything (PTAB issues, IT issues, etc.) until a permanent director is named.

  2. Night Writer August 5, 2017 11:48 am

    >Vishal Amin

    So, someone with no experience in the real world from what I could find out. Doesn’t understand technology. Doesn’t understand innovation. He understands how to be the boy of the Congress to deliver the promises of the Congress to the lobbyist groups. He understand how to spout nonsense with no substance. Basically, another criminal.

    Oh boy. I am sure he will improve things. 🙂

  3. Eric Berend August 5, 2017 3:30 pm

    I am sure that I write for most individual and small entity U.S. inventors, when I assert we’re done with any hope of improvement towards balance in the interests of stakeholders in the U.S. patent space, during the remainder of Pres. Trump’s administration.

    On my own behalf, it is possible, if I do attempt to pursue any kind of legal IP protections and there is enough in the budget; that I can approach the much-diminished prospect of a U.S. patent, through the PCT process.

    This ‘Vishal Amin’ person is not merely a sycophant: he is an active participant, shaker-and-mover in the actual drafting of the AIA, and continued on with such fervor to such monstrosities as the absurdly-named “Innovation Act”; therefore, any hope of genuine American inventors benefiting from the Constitutional bargain supposedly established in Article I, is now completely extinguished.

    “Draining the swamp”? So-called “REPUBLICAN”??! Supposedly ‘values property rights’? What an enormous fraud.

  4. Night Writer August 5, 2017 7:19 pm

    @2 I know Eric. This is a nightmare appointment.

  5. Tesia Thomas August 5, 2017 7:29 pm

    Well now seems like a good time to pack for China.
    It’s really not worth it to fight your supposed sovereign.

    Filing fees are like taxation without representation.

  6. Anon August 5, 2017 8:07 pm

    Filing fees are like taxation without representation.

    I struggle to understand the parallel that you are attempting with that historical statement and the condition of the entirely voluntary patent system.

  7. Tesia Thomas August 5, 2017 8:23 pm

    @Anon

    Well the colonists of the 13 colonies could’ve just moved.

    Too bad they wanted to stay where they were and have certain rights and get their money’s worth.

    I’m just an inventor who wants to get my money’s worth and have my rights.

    It’s all laws Anon. I’m supposed to get a certain property right in paying my money just as the colonists thought.

  8. Night Writer August 6, 2017 7:29 am

    After this appointment, I think we should expect the worst for the PTO.

    So, —sorry to say–but things are playing out as I said they would. The continued burning down of the patent system. You can’t fight Google bucks year after year pouring in to melt the patent system.

  9. Anon August 6, 2017 10:15 am

    Tesia,

    I am still not seeing your proposed connection between the two separate concepts.

    I think that you reach too far for a pithy statement that does not truly apply.

  10. Tesia Thomas August 6, 2017 1:58 pm

    @Anon,

    Then you don’t see it. Enough said.

    Patent system is not voluntary anymore than being taxed where you live is.

    Patent filings fees are law just as taxes are.
    You can choose not to have a patent and you can choose to live somewhere else.

  11. Anon August 6, 2017 4:46 pm

    Patent system is not voluntary anymore than being taxed where you live is.

    That is a nonsense statement.

    Joining in on the patent system is 100% voluntary.

    Your desire to state: “live in a different country” does not eliminate taxes – only US taxes.

    As I said – you are trying too hard for something that just does not reach.

  12. Tesia Thomas August 6, 2017 4:49 pm

    @Anon,

    Not filing in the US only eliminates US fees.

    I want something from my government that is supposed to be the law.
    Just as the colonists did.

  13. Anon August 6, 2017 6:38 pm

    Not filing in the US only eliminates US feed

    That’s not the correct comparison: Not partaking in the patent system versus paying the taxes wherever you reside is the correct comparison.

    Choosing to partake in the patent system (or not) just is not the same as taxes.

    Have you nothing better to do to flail for an inapt comparison?

  14. Anon August 6, 2017 6:39 pm

    Further, the colonists wanted something that was NOT there in the law.

    That’s why that had a revolution.

  15. Tesia Thomas August 6, 2017 7:03 pm

    @Anon,

    They were basing their revolution on the Rights of Englishmen.

    Also, you’re entitled to your own opinion.
    Taxes pay for goods, services, and rights. You can choose not to pay taxes. It’s called tax resistance.

  16. angry dude August 6, 2017 10:28 pm

    This is hopeless, dudes

    For as long as the current (or future) administration cares about Dow Jones index and Apple or Google stock and does not care about individuals and small startups the situation is not gonna improve
    It will get worse, much worse… before it can get any better
    Patent cycles are long
    We will see a dramatic decline of real innovation in US followed by dire economic consequences before those PoSes take a real hard look at the reality of being a small innovative upstart in the US
    amen

  17. Anon August 7, 2017 6:57 am

    Tesia,

    Also, you’re entitled to your own opinion.

    LOL – another inapt comment from you.

    These are not matters of opinion. Calling things that you get wrong “opinion” only prevents you from stopping being wrong.

    Certainly everyone has a right to their opinion, and just as certainly, no one has a right to attempt to label things that are non-opinion as opinion in order to persist in being wrong. That’s not opinion. That’s delusion.

  18. Tesia Thomas August 7, 2017 11:25 am

    @Anon,

    It’s opinion.
    The point is…
    I’m not getting my money’s worth just as colonists weren’t getting their money’s worth.

    You can stop with your FUD.

  19. Tesia Thomas August 7, 2017 11:27 am

    Filing fees (for no patent rights in lieu of ptab) are like taxation without representation.

    …because people are paying for stuff that they’re not getting.

  20. Anon August 7, 2017 12:28 pm

    Tesia,

    You can stop with your FUD.

    I have been having a bit of fun at your expense.

    Notwithstanding that, clearly, what you are saying is simply not opinion, and does not jibe with the factual nature of the legal principles involved. As to FUD (Fear, Uncertainty and Doubt) – that is yet another term you are not using properly.

    Having said that, I DO “get” what you are trying to say.

    Let me rephrase it for you.

    Paying filing fees does NOT get you a patent, that then can be “taken away” by the PTAB in some after grant exercise.

    Paying filing fees does get you an examination of an application under the law.

    IF (and this is where the crux of the matter lies***), that examination shows to the Federal employee whose job it is to vet your application that you meet the legal requirements, THEN you are provided an allowance, and, upon grant, your formerly inchoate right is solidified into a granted property right.

    Up to this point (the examination), ALL that you have paid for is what you have obtained: an examination.

    The story changes a bit AFTER grant. Note (and this is a critical legal point), that EVEN after you pay the issue fee, and up to the point of actual grant, the Office has the power to rescind its decision to allow and pull your application back into full blown examination. So even paying an issue fee does NOT “put” you into a “taxation without representation” analogous situation.

    It is a different legal point though that I believe that you are trying to get at. That different legal point is that post-grant, what you have is a property right. It still is a bit of a misnomer to say that you have “paid” for that property right, as the pay that you have provided is not directly for the property.

    Be that “pay” issue as it may, you DO have a “beef’ with the fact that a property that is now yours in every legal sense may “disappear” at the hands of a federal agency (the PTAB).

    However, this fact alone is NOT ENOUGH to draw the parallel you seek. For example, our government can and does LEGALLY engage in takings of property. See the legal arena of eminent domain.

    The underlying (and true) legal issue therefore is a subtly – but importantly – different. The underlying (and true) legal issue is whether or not the Executive Branch Federal Agency has properly engaged in its taking.

    *** The current rhetoric about whether or not examination was adequate in the first place – in the truest legal sense, and aside from the massive amount of “justification” from those seeking the ability to improperly engage in takings of granted property rights – is a false flag issue.

    It really does not matter legally if the examination was “shoddy” or (heaven forbid) simply not as good as an independent and well-monied third party examination (as is more typical with post grant review items). The deal for the property right is the deal that the Office has engaged in, and you have lived up to your end of that bargain.

    At the point of grant, a true property right is created. Once created, that property right inures ALL of the protections of property that our Constitution provides. Critically, this includes ANY protections in regards to takings law that applies when – and for whatever reason a Federal Agency seeks to engage in a takings.

  21. Tesia Thomas August 7, 2017 12:33 pm

    When I pay for a great, valid patent then I want a great valid patent.
    That’s attorney fees to draft and filling and exam and issuance fees.

    When I pay for taxes, I want representation.

  22. Anon August 7, 2017 12:55 pm

    Awesome and swell.

    Still not to the legal points that you merely think that you are reaching for.

    You may have an opinion otherwise, but THAT opinion does not – and cannot – change non-facts into reality.

    The reality is that the phrase “no taxation without representation” has an understood meaning in its legal context.

    Your opinion does not make it to that reality. No amount of quibbling on your end will change that.

  23. Tesia Thomas August 7, 2017 1:30 pm

    It’s not getting what you’re paying for.

  24. Anon August 7, 2017 2:50 pm

    Tesia,

    You are not understanding just what you are paying for.

    You may think you understand, but your thought is just not correct.

    See post 20 for the more nuanced version.

  25. Tesia Thomas August 7, 2017 3:00 pm

    If I’m paying for examination and ptab invalidates my patent after the examination then I’m not getting what I paid for.

  26. Anon August 7, 2017 3:54 pm

    As I said, Tesia, see post 20 for the critical nuances that you seem not to be grasping.

  27. Tesia Thomas August 7, 2017 9:00 pm

    @Anon

    Patents need lemon laws.
    If you buy it and it fails in ptab then you get a refund.

    How’s that?
    Hahahahha

  28. Anon August 7, 2017 9:48 pm

    You are still missing the point about “what you buy.”

    See post 20 please.

  29. Tesia Thomas August 7, 2017 9:57 pm

    @Anon,

    Okay I’m paying for examination.
    Well, I paid and I wanted to know whether I could have a valid patent or not from that examination.
    Is that not the point of examination? To know if you have a patentable technology.

    Ok. So, I paid. My patent was rejected. Oh, well. I got my money’s worth.

    Ok. So, I paid. Patent approved. Did I get my money’s worth?
    No!! Because the examination means nothing due to PTAB!

    It’s like getting a health checkup and paying a copay. Your doctor says you’re fine. Later on you’re pronounced dead.
    In that case, the exam was worthless/not worth the copay.

  30. Tesia Thomas August 8, 2017 7:53 am

    With ptab, one can never have a valid patent.
    And examination only seems to be concluded as ‘good’ once the patent is invalidated.

    If your patent is still valid then you didn’t have a good examination in the USA so all the money you paid is a waste.

  31. Night Writer August 8, 2017 8:17 am

    @30 That is exactly right.
    @16 Angry Dude. I agree. I think we can expect more of the same. I predict we are nearing a tipping point where US patent filings will fall by 25%. When is it going to happen? I can tell you that too. It will happen during the next recession. Year two of the next recession will see 10%. Year three 20%.

  32. Anon August 8, 2017 8:19 am

    Tesia,

    Your issue is not how you wish to present it.

    See post 20 for the nuance.

  33. Tesia Thomas August 8, 2017 8:36 am

    @Anon,

    So what is the purpose of an examination?
    Why am I paying for it?

  34. Tesia Thomas August 8, 2017 8:48 am

    I’ll tell you, Anon.

    Examination:
    Examination is the process of ensuring that an application complies with the requirements of the relevant patent laws. Examination is generally an iterative process, whereby the patent office notifies the applicant of its objection. (see office action) The applicant may respond with an argument or an amendment to overcome the objection. The amendment and the argument may then be accepted or rejected, triggering further response, and so forth, until a patent is issued or the application is abandoned.

    https://en.wikipedia.org/wiki/Patent_application#Search_and_examination

    If my patent is issued then I don’t get my money’s worth because I still don’t actually know whether or not my patent is valid in lieu of PTAB.
    They’re taking my money and not giving me what I’m paying for.
    I want to know BEFORE issuance whether or not my patent is valid.
    With the current system, I have no clue whether or not it is.

  35. Anon August 8, 2017 11:46 am

    Tesia,

    Have you even bothered to read my post at 20?

    You are still missing the nuance of the actual problem here.

    Takings can – and do – occur, and may occur fully properly under the law. The issue is LESS that you may suffer a taking with the PTAB and more with whether or not the proper controls of that taking have been observed.

  36. Tesia Thomas August 8, 2017 11:53 am

    No Anon.
    Because at least the government is supposed to give due compensation.
    Inventors lose IP and *poof* nothing.
    Nothing to even sue for. At least you could sue the government for compensation and obtain a contingency fee attorney to do so.

  37. angry dude August 9, 2017 10:02 am

    Tesia Thomas@36

    For me it was much much worse than that

    At least you could not keep your zipper design a trade secret – once its out everyone can make
    I could keep my algo a trade secret for a long long time but was lured into trusting US Patent system
    such an idiot I was

    “Fool me once – shame on you, fool me twice – shame on me”

  38. Tesia Thomas August 9, 2017 10:13 am

    @angry dude

    Yeah. 100% mechanical tech is not very secretive.
    Oh well, everyday on my lunch and when I get home, all I do is scour libraries, the internet, etc for prior art.

    I better get a good examination with all of this stuff.

  39. dh October 1, 2017 7:03 pm

    Vishal Amin, who worked with lobbyists behind the scenes to introduce provisions of AIA that utterly gut accountability at the USPTO, thus turning it into the kangaroo court of PTAB, is now to be the “IP enforcement coordinator”? That is rich.

    This is a complete farce.

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