Former Trump campaign advisor: “Today, patents are worthless.”

By Steve Brachmann
August 24, 2017

Michael Caputo, former Trump campaign advisor. Photo taken by Julie Pixler © 2017.

By many accounts, August 11th’s peaceful protest of the Patent Trial and Appeal Board (PTAB), staged by inventors’ rights organization US Inventor, was very successful despite a decision by the U.S. Patent and Trademark Organization to deny a use permit application for the event. Sources attending the day’s events confirmed that all planned activities, including the burning of U.S. patents, happened without any disturbance from law enforcement officials. The protest focused on the negative impacts on inventors and patent owners by the activities of the PTAB, an Article I tribunal with Article III powers to take away Constitutionally-protected property rights, a function which it has been performing at an astounding rate of invalidation.

According to Randy Landreneau, a member of US Inventor’s managing board, many of the day’s participants arrived to the USPTO headquarters early on August 11th and handed out a total of 1,200 flyers, many of which were given to USPTO employees who were showing up for work that day. “I had numerous conversations with patent examiners while doing this,” Landreneau said. “The ones who were aware of the issues were happy we were there. The ones who were not aware of the issues were happy to be informed.” The flyers included an article published by US Inventor titled Crisis in American Innovation, a white paper explaining critical issues currently impacting the U.S. patent system and steps which can be taken to improve the situation.

One of the individuals helping to facilitate the event for US Inventor was Michael Caputo, a former senior advisor to Donald Trump’s 2016 presidential campaign and a public relations advisor for US Inventor. In a phone interview, Caputo described his familiarity with the issues of weakened rights for U.S. patent owners, beginning with his experience in running all litigation communication during the entire seven years of the patent litigation case between MercExchange and eBay, leading up to the U.S. Supreme Court’s 2006 decision in the case; in eBay Inc. v MercExchange, LLC, SCOTUS held that findings of patent infringement should not necessarily result in a permanent injunction.

“We began noticing that key appointments in the Trump Administration were going to Republicans who were very anti-patent,” Caputo noted. These appointments include Vishal Amin, who Trump selected to serve as Intellectual Property Enforcement Coordinator (IPEC) within the office of the President. Amin had an important role in drafting the America Invents Act of 2011, especially those provisions regarding the PTAB which was just targeted by US Inventor’s protest. Caputo also raised concerns over the potential patent views of Joseph Matal, who is currently the acting Director of the USPTO. Many inventors believe Matal is lobbying to remain the Director and not just serve in the interim after Michelle Lee’s resignation.

Caputo and US Inventor were further discouraged to find out that a brief filed on behalf of the federal government in Oil States Energy Services LLC v Greene’s Energy Group, LLC argued that it was the government’s position that the Supreme Court shouldn’t take up the case to review the Constitutionality of the PTAB. “Their brief says that patents are a public right,” Caputo said. “That’s what is at the core of the controversy with the PTAB.” A brief filed by petitioner Oil States in response to the government’s brief echoes that sentiment, noting that the federal government doesn’t dispute the fact that the Constitutionality of inter partes review (IPR) proceedings is a frequently recurring argument in legal disputes:

“Instead, the government mounts a full-throated defense of inter partes review on the merits—and in so doing only confirms the need for this Court’s review. The government’s position— that patent rights are ‘public rights’ that can be extinguished in administrative proceedings—is both breathtakingly broad and irreconcilably in conflict with this Court’s cases.”

Despite some initial hopefulness that the Trump Administration would ultimately part ways with the Obama Administration’s stance on patent rights and the enforcement of patents, many in the patent community are upset at the direction in which the Trump Administration has been unfolding in terms of intellectual property rights protections. “The remarks that President Trump made on the campaign trail gave us the indication that he would be very pro-inventor,” Caputo said.

An inventor burns his patent at the USPTO protest. Photo taken by Julie Pixler © 2017.

The unwillingness to drain the swamp of anti-patent rhetoric and personnel is even more disheartening given the fact that Donald Trump often propped up the story of his uncle John G. Trump, an inventor who was instrumental in the development of Van de Graaf generators, electrostatic generators which can create very high electric potentials and was used heavily in physics research. “The President regards him very highly,” Caputo said, noting that Donald Trump’s admiration of his uncle’s work extends to well before his campaign for President. Trump’s accolades for his uncle were also included in a piece published by The New Yorker last April. “My uncle used to tell me about nuclear before nuclear was nuclear,” Donald Trump is quoted as saying. John Trump also invented technologies in radar and high-powered lasers for cancer treatments.”

“In our mind, the President and his White House need to be aware of the continuation of these anti-patent policies, which run counter to everything that the President believes and everything Uncle John represents,” Caputo said. “If you know the positions of Amin and other appointees on these issues, you know that they would think that uncle John was a patent troll.” Under the Obama Administration, policies that are being continued under the Trump Administration would render John Trump as penniless as many of the inventors who protested the PTAB and burnt their patents on the front steps of the USPTO. “Today, patents are worthless. We’re calling on the White House to take note of the anti-patent policies of the Obama Administration, and issues surrounding the PTAB, and make important changes to encourage innovation for economic growth,” Caputo said.

The burning of U.S. patents were not the only aspect of the US Inventor event planned for August 11th at the USPTO. On a highly positive note, US Inventor awarded six USPTO patent examiners for high quality work in their field. The award recipients selected by US Inventor were:

Best RejectionKristy Haupt, Art Unit 2876

Best AmendmentMarc Carlson, Art Unit 3723

Best InterviewMarc Burgess, Art Unit 3643

Best Prior Art Search – Cheyne Ly, Art Unit 2168

Best Notice of AllowanceCreighton Smith, Art Unit 2656

Best All AroundErika Washington, Art Unit 2646

According to Josh Malone, Fellow at US Inventor, a representative came to the ceremony to accept the award for Best Amendment, which went to Marc Carlson. All other awards were mailed to their recipients.

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.

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 28 Comments comments. Join the discussion.

  1. Query August 24, 2017 10:26 am

    Steve – What exactly do you mean when you say “Constitutionally-protected property rights”? Are you referencing the IP Clause?

  2. Gene Quinn August 24, 2017 10:32 am

    Query-

    Steve can chime in, but this is a term similar to one that I frequently use myself. I talk about a property right of Constitutional importance generally, and when I do so I am referring to Article I, Section 8, Clause 8 of the Constitution, which is known as the IP Clause. I’m certain that is also what Steve is referring to as well.

    -Gene

  3. Anon August 24, 2017 11:06 am

    Gene et al,

    Let me throw in my notes (to continue the chime meme): once a property is created (i.e.,, at grant) there are other Constitutional protections that kick in that inure to all property.

    It is NOT enough to focus merely on the Congress and the power provided by Article I, Section 8, Clause 8. Yes, that is the genesis of the allocation of authority to which particular branch of the government may write the (statutory) law that is patent law.

    It just does not end there.

  4. Query August 24, 2017 11:14 am

    Gene –
    Your use of “Constitutional Importance”—while a bit murky in its meaning—is much closer to correct. The IP Clause doesn’t “protect” anything; it gives Congress the ability to pass certain copyright and patent law. Also, I think Anon 11:06’s comment may have some legs, if one wants to assert something like the Takings Clause or the like.
    Best!

  5. Randy Landreneau August 24, 2017 11:23 am

    Here’s a page with the two-minute BBC video of “the burning”, and the story in pictures:
    http://www.independentinventorsofamerica.org/the-patent-burning-of-2017/

  6. Gene Quinn August 24, 2017 11:44 am

    Anon (and Query)…

    Let’s go down this path if we can. The IP Clause gives Congress the power to create the property right, which I refer to as a property right of Constitutional importance perhaps as a way to make the connection for non-lawyers and those not specifically within the IP community but a part of the conservative movement.

    The statute — 35 USC 261 — in relevant part for our discussion says: “patents shall have the attributes of personal property.”

    So once the property is created that then means it exists and is deemed to have the attributes (presumably the rights appertinent thereto) of personal property.

    Perhaps I’ve not given the Takings Clause arguments the consideration I should, at least from a conceptual standpoint. I think after Kelo v. City of New London I just dismissed takings cases under the 5th Amendment as impossible, but in doing some quick research to write this comment it seems that there are two different causes of action under the 5th amendment and Kelo was not actually a “takings” case. So it seems that I have been in my own mind muddling the two together.

    Thoughts, comments, ideas?

  7. Invention Rights August 24, 2017 12:15 pm

    The Constitution gives Congress the power for securing to inventors the exclusive right. The PTAB does the opposite. The right is in perpetual limbo. So Congress exceeded its authority in creating the PTAB.

  8. American Cowboy August 24, 2017 2:36 pm

    Congress passed the Homestead Act back in the 1800’s which gave property rights to people who settled land in the West. If Congress can have an administrative body destroy property rights, a lot of landowners need to start worrying.

  9. step back August 24, 2017 5:12 pm

    The quid pro quo of the patent deal is basically a contract.

    I recall something from con law class about the sanctity of a contract?

    Fletcher v. Peck – Contracts And The Constitution?
    http://law.jrank.org/pages/25017/Fletcher-v-Peck-Contracts-Constitution.html#ixzz4qi2Y1i2n

    the Court’s decision upheld the two basic tenets of federalism: the supremacy of the federal government over the state governments, and the sanctity of private property. After all, wrote Chief Justice Marshall, there must be some limit to what government could do. And, “where are [these limits] to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation?”

  10. Poesito August 25, 2017 1:29 am

    Good thread. This is the best site on the web for an aspiring/wannabee independent inventor to get a real world understanding of the patent system. Unfortunately, what I’ve learned in nearly a year is both disappointing and depressing.

  11. Anon August 25, 2017 8:11 am

    Poesito,

    Alas, there really is a war being waged against strong patent rights – with more than one ideology waging that war.

    I have written in the past about how both the ideological Left (those that disdain personal property) and the ideological Right** (those that disdain the personal property of others) each, for their own desired ends, attempt legislative capture (among other tactics – and there are several tactics in play).

    A two-front war is indeed a difficult war to wage.

    **my version of the ideological Right should not be viewed as an alignment with the political “conservative” right of US politics. Rather, my version of “Right” is better viewed as the Right of “Big Corp” or transnational, no allegiance to any sovereign, corportacracy. Or if you prefer, a form of fascism, wherein it is the industry and commerce that invade and control the government apparatus, instead of the traditional reverse.

  12. Paul F. Morgan August 25, 2017 9:09 am

    Re: “.. key appointments in the Trump Administration were going to Republicans who were very anti-patent.” [Not exactly what some commentators here thought before the election.] [Also ignoring prior expressed views of Republican House members most influential in patent law legislation.] Being pro small business is definitely not necessarily being pro patent litigators.

  13. American Cowboy August 25, 2017 9:20 am

    Poesito, to amplify anon’s comments on the Right: I think he is talking about established companies with established investments and market share. They already have commercial success and do not want to see that success threatened by a start-up or lone inventor who can get a court to command them not to use the patented invention, which may be more attractive to their customers and therefore divert business from the established company. Also, big finance has invested in established companies, so they want those established companies to be the ones that exploit any new markets, not the start-up or lone inventor.

  14. Anon August 25, 2017 11:47 am

    American Cowboy,

    Well stated. Thank you.

  15. Eric Berend August 25, 2017 1:02 pm

    @ 12., ‘Paul F. Morgan’:

    A very disingenuous comment. About as false as the so-called “patent troll”.

    Pray tell us, kind “sir”: precisely WHICH “pro small business” policy is it, that shears leading innovation absolutely away from smaller business entities and startups; by being “anti” ‘patent litigation’? A good little ‘pat on the head’ for ceding the field to ONLY the most largest, wealthy corporations – and that meets with your august, regal approval?

    The “pro” – ‘anti-patent legislation” kind, that seek to weaken legal IP property protections ever further, even after the small entity inventors have already. mostly fled the scene?

    The cast majority of inventors do not focus on the “litigation” part, since historically and until recently, there has been a functionally reasonable implementation of the implied Constitutional bargain of Article 1, Section8, Clause 8.

    Now: just “WHO” was it, that parsed every last detail of “litigation” and yanked the historic rug out from under the inventors’ feet?

    You guys: those attorneys motivated to burn the system down.

    Your “disingenuous” opprobrium is not so well no subtly veiled, after all. But as I have lately admonished others of your ilk, I have little hesitancy extending the response to your insult: we are no longer deceived by your high-handed, inappropriate, dissembling hypocrisy.

    Some G*damned f*cking nerve you have there, at this later stage of affairs here, where inventors, who are the seminal root also of some very important small businesses, are regarded with your cavalier disdain and contempt…”sir”. You bring dishonor upon the very titular distinction of “Esquire” still permitted to attorneys in our society.

  16. Paul F. Morgan August 25, 2017 4:20 pm

    Eric, pay attention. I clearly said “prior expressed views of Republican House members most influential in patent law legislation.” Not mine. Go ask them.

  17. step back August 25, 2017 4:27 pm

    Poesito @10

    Best to walk into the system with eyes wide open rather than in dreamer state.

    For now, focus your inventor wannabe energies on mechanical inventions. Stay away from software and biotech because the powers to be do not like those fields of endeavor too much.

    I would recommend developing designs for improved Medieval siege weapons because the Dark Ages is where America is heading at full gallop.

    Cheers.

    http://www.medievalwarfare.info/

  18. Gene Quinn August 25, 2017 5:41 pm

    Step-

    “Dark Ages is where America is heading at full gallop”

    That would make a great title for an article!

  19. step back August 25, 2017 7:11 pm

    Thanks Gene.

    I tend to prowl through some of the more dystopian web sites.
    I’m definitely not the first to suggest that such is our future.

    The Roman Empire lasted for thousands of years.
    The USA? A paltry 250 years.

    No collapse is overnight.
    A small thing gives way here then another one over there.
    Drip drip drip.
    No one really notices. All those drips add up. And one day we’re under water.

    The USA patent system is one of those unnoticed bleeds. (Unnoticed by the general public.)

    So what if one wannabe inventor like Poesito gets disheartened and gives up?
    Then another one.
    And another one.

    One day we wake up and no one is bothering to invent here anymore.
    There is a banging at our fortress walls. The barbarians. They have innovated way beyond us. And our walls come a tumbling down.

  20. step back August 25, 2017 7:13 pm

    But of course that could never happen.
    Because we are already great again.
    And always will be so.

    (sarcasm, the only way to keep smiling)

  21. Night Writer August 26, 2017 8:24 am

    I still think too little attention is being paid to the academics. Without people like Mark Lemley the politicians would not be able to dismantle the patent system.

  22. angry dude August 26, 2017 9:36 am

    step back@17

    “For now, focus your inventor wannabe energies on mechanical inventions”

    Yeah, right, dude

    Ask Tesia – she’ll tell you all about patents on mechanical inventions

    “Stay away from software”

    Completely untrue

    Software can be protected very well just not with patents
    A combination of trade secrets and copyright (on binary executable)
    Just the simple action of compiling your source code imposes major 6-7 figure expense on reverse-engineering by potential copycats (unless they want to go criminal route and crack you binary – that is use it as it is )

    Bottom line: patent system is long dead and it’s better to stay away from it

  23. Night Writer August 26, 2017 10:02 am

    @12 Eric Berend

    You will find there are bunch of people that post on here that are anti-patent and propagandists.

  24. angry dude August 26, 2017 3:17 pm

    step back@17

    “…Medieval siege weapons because the Dark Ages is where America is heading at full gallop”

    Jokes aside, the proliferation of trade secrets (vs patents) will lead to medieval age guilds where knowledge and know-how is passed in strict confidentiality to a trusted guild member or dies with original inventor

  25. Tesia Thomas August 26, 2017 3:18 pm

    I’m making a fire breathing dragon.

  26. angry dude August 26, 2017 11:51 pm

    step back @19

    Barbarians are not a problem
    USA used to let some barbarians in and those bastards would create entire new industries here in America
    think Tesla, Zworykin, Sikorsky etc
    The problem is complete lack of integrity in wash dc
    corruption, hypocrisy, gluttony … you name it
    this will eat this country inside out just like Roman empire rotted on the inside well before it fell to barbarian tribes

  27. step back August 28, 2017 12:31 pm

    angry @26

    I’m not talking about individuals who want to become Americans and do good for America.

    If you were the supreme leader of a foreign entity, say Russia, China, … and your security services told you America can be taken down one slice at a time by, for example, disparaging the American patent system, convincing certain academics and legal scholars who are willing to be convinced that what is best for America is to dismantle the patent system, well then … you can connect the dots.

    Yes the barbarians are indeed at the gates. The Trojan troll horse already has been hauled in through the fortress gates. And certain tech-right activists are dancing in joy around it.

  28. angry dude August 28, 2017 2:57 pm

    step back@27

    “…who are willing to be convinced…”

    That’s the thing – always follow the money

    For me however this just means hide as much as possible (which is easy with embedded software) and keep your mouth shut

    And to hell with promoting the progress

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