USPTO denies permit to US Inventor for PTAB protest

By Steve Brachmann & Gene Quinn
August 10, 2017

This Friday, August 11th, US Inventor, a nonprofit organization devoted to improving the U.S. patent system, had planned on staging an event at which the organization would both recognize high quality patent examination as well as stage a peaceful protest of the Patent Trial and Appeal Board (PTAB). However, a decision by the U.S. Patent and Trademark Office to not approve the event is leaving protesters in jeopardy and may result in patent owners being put in jail.

In an appeal letter dated August 10th sent to the USPTO, US Inventor argues that the USPTO’s denial of US Inventor’s use permit application is not permissible under the First Amendment to the U.S. Constitution. US Inventor applied for the use permit on July 24th and resubmitted the application on July 28th. The group then received an initial non-approval notice this Monday, August 7th, which included no basis for denying the application.

On Tuesday, August 8th, US Inventor received a phone call and an e-mail from Charles Fanshaw, Director of the Office of Administrative Services at the USPTO, which laid out three grounds for not approving the use permit application. The USPTO contends that approval of the use permit application would disrupt official business of the USPTO within its buildings, that booth/table set-up within USPTO facilities is limited to instance where doing so furthers an agency objective or program, and that any use of the USPTO is limited to cultural, educational and recreational activities. US Inventor argues that each of these grounds is erroneous under the First Amendment for denying the use permit. “While the views of US Inventor may be different than, or in tension with, the views of the USPTO, that difference of opinion is no basis to deny US Inventor’s use permit application,” the August 10th appeal letter reads.

“The USPTO does not believe in property rights or the First Amendment either,” said Josh Malone, Fellow with US Inventor. According to Malone, several dozen inventors are either in transit to Washington, D.C., or have already arrived to take part in the US Inventor event. “There’s no question that we’ll be heard.”

Given the denial of the use permit application, there seems to be some question as to whether or not U.S. patent owners will be arrested tomorrow for burning their patents as a symbolic and peaceful protest of the activities of the USPTO, particularly those within the PTAB. Inventors, as well as many others in the innovation community, feel the PTAB and the post grant procedures ushered in by the America Invents Act (AIA) have made their patents worthless anyway, which is hard to argue when well over 90% of patents challenged are found defective. Indeed, former Federal Circuit Chief Judge Randall Rader dubbed the PTAB a “death squad,” which then PTAB Chief Judge James Smith saw as a badge of honor.

Patents rights are currently be extinguished by the PTAB without appropriate procedural fairness afforded. The PTAB refuses to consider evidence timely submitted, they refuse to allow amendments despite the statute saying there is a right to amend claims, they refuse to issue final decisions on all claims challenged, they have made their own standards rather than follow statutory requirements, there are no judicial rules of ethical conduct for PTAB judges, PTAB judges have decided issues involving former patent infringement defense clients, and much more. It is difficult to believe a tribunal like this exists in America. The Supreme Court has long stated patents are property rights, and the statute says they are to be treated as they are property rights. Taking property rights away with such a fundamentally flawed process is practically un-American.

The decision of the United States Patent and Trademark Office to deny the permit and effectively prohibit the protest will undoubtedly strike some, perhaps many, as un-American as well. The First Amendment, however, does not provide an absolute rights for citizens to protest however they want wherever they want. While the symbolic burning of the patents would send a very strong message that element of the planned protest may be what lead to the USPTO’s denial. It would, however, have seemed appropriate for that to be conveyed to US Inventor.

The USPTO has to know that a great many within the innovation community are deeply unhappy with the PTAB. While the protest as planned may raise some legitimate concerns it would be prudent for the USPTO to work with US Inventor and the independent inventors who have arrived in Alexandria, Virginia to find a way for them to publicly voice their concerns.

 

The Author

Steve Brachmann

Steve Brachmann is a writer located in Buffalo, New York. He has worked professionally as a freelancer for more than a decade. He has become a regular contributor to IPWatchdog.com, writing about technology, innovation and is the primary author of the Companies We Follow series. His work has been published by The Buffalo News, The Hamburg Sun, USAToday.com, Chron.com, Motley Fool and OpenLettersMonthly.com. Steve also provides website copy and documents for various business clients.

Steve Brachmann

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 25 Comments comments. Join the discussion.

  1. Confused Pharmacist August 10, 2017 5:47 pm

    Is this a content-based restriction or a time-place-manner restriction? If the latter, then couldn’t the protest be held just outside the PTO grounds on the street?

  2. Evanstreth August 10, 2017 6:41 pm

    “While the symbolic burning of the patents would send a very strong message”

    Flag burning barely registers any outrage today so I doubt this will do anything more than operate as an excuse to charge protestors for fire marshal coverage.

    At least with the denial the PTAB can concentrate on their job in silence

  3. Night Writer August 10, 2017 8:51 pm

    >>At least with the denial the PTAB can concentrate on their job in silence

    This from the Director.

  4. angry dude August 10, 2017 9:45 pm

    White House lawn then ???

  5. angry dude August 10, 2017 9:57 pm

    Too bad I can’t drive to wash dc for patent burning tomorrow – my patent is ready collecting dust in the closet

    but i’m just a white non-descript middle-aged guy so wtf cares in this country

    we need more of women and minority inventors – so the f%^&** CNN will have to show if someone gets arrested although the f$%%^^& media lost all shame by now

  6. Night Writer August 11, 2017 7:24 am

    Hi Steve, what about an article about patents for vacuums? They have really advanced a lot and the Chinese are filing patents on vacuums.

    They really have advanced quite a bit. (I do a little bit of work with vacuums.)

  7. Paul F. Morgan August 11, 2017 8:12 am

    Why do they want to protest at the PTO, which neither enacted the legislation, or make the Sup. Ct. decisions, that they are complaining about?

  8. Ternary August 11, 2017 8:44 am

    You have to admit. It would have been an extra-ordinary sight: inventors burning their red-ribbon patents in front of the USPTO.

    I am not surprised that the USPTO tries to prevent this “patent burning” from happening. Because, if it happens, they to have to explain to the press why inventors, who together with cowboys are part of the American myth, are so unhappy with the USPTO and/or patent system that they burn, that is deliberately destroy, this once golden product of the American Dream.

  9. Bemused August 11, 2017 9:54 am

    Paul@7 I agree with your comment about SCOTUS so if inventors really want to attract the right kind of attention they should plan a protest at the Supreme Court when the Oil States case is heard. I presume Capitol Hill security informs the justices when protests have been permitted/organized at SCOTUS and an inventor protest would come to the justices’ attention.

    (Not sure if it would help get the correct results in Oil States – but it will send a message to the justices that the peasants are starting to grumble…)

  10. Gene Quinn August 11, 2017 10:20 am

    Paul @7-

    I can understand why inventors would want to protest at the USPTO. The USPTO put together the rules that the PTAB uses and the judges on the PTAB are the ones interpreting them at every turn to disfavor patent owners. The USPTO also continues to cling to the myth that they have only 12 months to conduct post grant proceedings, when in fact the statute gives them up to 18 months. Why has the USPTO never taken a single day available in the extra 6 month window in any of the 8,000+ cases? They complain about not being able to give full process because of timing, but then don’t use all the time? There is really plenty of reason to protest what the USPTO has done.

  11. Gene Quinn August 11, 2017 10:22 am

    Bemused @9-

    I agree 100%. Inventors should hold a massive rally on the steps of the Supreme Court the day Oil States is argued. They should similarly hold a massive rally at the Supreme Court the day SAS is argued. If they cannot get the proper permits to rally on the Supreme Court property they should line up on the street.

  12. mark martens August 11, 2017 12:49 pm

    Gene,

    Only with the benefit of hindsight, it seems to me now that Yes, big Tech has committed this theft. Also that they have now shaken down many patent holders, and now probably hold wads of that IP themselves.

    I agree a patent-burning should carry a powerful emotional message, and also that it is a philosophically quite different event than a flag-burning.
    Quite different. A more shocking message actually.

    But is this really part of a bigger picture process,
    a) Change laws to deavlue IP, then buy wads of it.
    b) Wait for indignant inventors to change the laws back,
    thus protecting their newly acquired loot.

    Is THIS the real process?

  13. angry dude August 11, 2017 1:28 pm

    mark martens @12

    “a) Change laws to deavlue IP, then buy wads of it.”

    It is my impression that they absolutely do not want to pass any money to independent inventors or small startups for their patents, no matter how small
    They just want to make patents sport of kings (with the entry ticket of at least 5-10m of disposable cash) and be done once and for all

  14. Paul F. Morgan August 11, 2017 1:39 pm

    Gene @ 10, 35 USC 316 (a)(11) states: “requiring that the final determination in an inter partes review be issued not later than 1 year after the date on which the Director notices the institution of a review under this chapter, except that the Director may, for good cause shown, extend the 1-year period by not more than 6 months, and may adjust the time periods in this paragraph in the case of joinder under section 315(c);”
    “Good cause shown” is a high hurdle that Congress that has set for taking longer than 1 year. It was made because many reexaminations were taking too long to be effective for patent litigation cost reductions, and is not a PTO rulemaking whim.

  15. Paul F. Morgan August 11, 2017 1:53 pm

    P.S. This 1 year statutory timeline does not start to run until after the IPR’s institution, which is several months after the patent owner has already been served by the petitioner with the petitioner’s prior art, other evidence, claim charts, and arguments.

  16. Richard Baker August 11, 2017 3:09 pm

    I hear that US Inventor held the protest at the USPTO steps this afternoon anyways, and burned their patents in front of the Madison Building. There was lots of press coverage.

  17. Nancy Kramer August 11, 2017 6:18 pm

    Great that they were able to protest and got a lot of coverage.

  18. Ternary August 11, 2017 8:15 pm

    Awesome! People should realize that for most of the protesters this was a burning of money. For each patent that was burnt, already over $ 100,000 has gone up in smoke for the patent owners, thanks to our current patent system.

    The patent system is not fair, it is not just and it is a terrible waste of human intellect and effort. As an industrial and economic policy, it has become an utter failure as it mainly serves incumbent interests. It is now acting as a disincentive for small companies and independent inventors to invent.

  19. Roger Heath August 11, 2017 11:35 pm

    mark martens @12

    Your “cheery outlook” (sarc) is misplaced.

    Include in your outlook; As a micro-entity who could not afford an attorney I would be encouraged to try to file on my own if not aware of the toxic condition of the patent system.

    But foreigners or billion dollar company (shells) can file as a micro-entity any number of worthless/Trojan horse patents with no intention of success (with little outlay and no repercussions).

    Then the “patent application statistics” can be fudged further to conceal the execution of a coup de gras of the patent system while choking it.

  20. Paul F. Morgan August 12, 2017 12:56 pm

    There is no shortage of “fake news” based on illogical conspiracy theories in patent blog comments. E.g., any large entity falsely claiming mico-entity or small-entity status to get cheaper filing fees would end up with unenforcable patents. Also, as noted in other complaints here about large application prosecution costs, it does not make those prosecution costs significantly cheaper. If large entities want worthless patents for defensive purposes – to block later patenting attempts by others – it is vastly cheaper for them to do so by publications rather than by patent applications.
    There are plenty of real problems with our patent system, and some are fixable. But as Winston Churchill said about democracy, it is a terrible form of government, but all the alternatives are worse.

  21. Anon August 12, 2017 5:35 pm

    Mr. Morgan,

    Given your own predispositions as the “great defender of the IPR,” how much of what you post is “fake”…?

  22. Roger Heath August 13, 2017 3:27 pm

    Paul F. Morgan @ 20

    You totally miss (or avoid) the point. “Unenforceable patents” are not a goal, but a cheap way to smother the patent system in wasted time and resources.

    Espionage on the cheap by any standard.

  23. Anon August 13, 2017 3:59 pm

    I am not sure that he did miss the point.

    There have been several comments of late across the patent blogosphere that seek to paint Efficient Infringers as only desiring to engage in a single tactic against strong patent rights.

    It is not – nor has it ever been – just so.

    I do not think it a coincidence that Mr. Morgan himself has often presented views (notably a relentless defense of all things IPR) that align with the views of the Efficient Infringers.

  24. Roger Heath August 13, 2017 6:27 pm

    Anon @23

    I recognize the typical narrative used by “Chinaman With A Keyboard”, bent-left, and sellouts.

    I lump them altogether as CWAK’s since they are all effectively anti-U.S. But I do wish to remain respectful.

  25. Anon August 13, 2017 10:42 pm

    Being respectful certainly has a place – and just as certainly that place is not THE place – I am not fond of letting “play nice” get in the way of calling things like they are. And I am certainly not averse to using rhetorical tools – such as biting sarcasm – in situations where such is applicable.

    I would distinguish this from most all of the drek one readily finds on certain other blogs, as mindless and baseless ad hominem does not fall into the category of “where such is applicable.”

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