So, we have a new name to vet for USPTO Director; and, we get to see whether that person can hang in there through the confirmation process. Tea leaf reading articles have been written to try and discern what this person’s attitude or philosophy is toward patents, the system, etc. None of this is very direct. That is, assessments are made based on certain assumptions which may, in fact, be wrong. Articles have looked at past clients, past case outcomes, choice of work, and so forth, but all that reveals is a person taking clients and working in the field and doing a good job. I plan to take a more direct approach. Inasmuch as the new Director can change, or do whatever they want once in the job, and will be subject to political winds, I thought I’d just tell them what I want and why. Simple. Here’s my list.
First, believe in your product and the team that produces the product. Stop the labeling of “legitimate patents” as compared to other, presumably, “illegitimate patents”. There is only one type of patent, the one produced by the PTO. End of story. Each receives the examination it can in light of the fees paid. Each examination is done according to the laws and rules set forth in the statute and in accord with the CAFC administration of that statute vis-à-vis the PTO. This is true across all technologies. Examiner’s do the best they can with the tools available. This includes training, searching, and examining. The PTO does not favor one group over another. It calls balls and strikes in light of the relevant statute or rule.
If you find any of the foregoing not to be accurate, set about fixing it. You have a very able professional staff who knows how to get things done. Rely on them. If they tell you something can or cannot be done, they are probably right. Work with them.
The last PTO Director clearly did not believe in the product the PTO produced, nor in how the products were used post issuance. Post issuance, the PTO was used as a Star Chamber to rid the system of “illegitimate” patents. The only common denominator as to their “legitimacy” or lack thereof, was they stood in the way of a well funded competitor. Patentees were lured into the Patent Office, fully disclosing their innovations in exchange for time and scope limited property rights, when those innovations proved economically worthwhile, the PTO charged a higher price and stripped the patent owner’s of their rights to exclude. Who, in their right mind, would file a patent application?
Get rid of the PTAB altogether, or provide a reissue off ramp which auto stays any PTAB proceeding until the reissue emerges. It cures most of what ails the PTAB process (ie., no real right of amendment) and provides for intervening rights to off-load past damages. Going forward, post reissue, the PTAB could then re-decide the petition in view of what an examiner skilled in the relevant field has determined. The PTAB, in its present configuration, is obviously pursuing a political end. This is unworthy of the PTO and is not in accord with the Constitutional charge of the patent system.
Keep fees low and timelines short. A patent is a wasting asset. Term is burning from the moment filed. I know that patent term adjustment is meant to address some of this, but the far, far, better solution is to keep pendency, across all technologies, short. Work to resolve this discrepancy. The lead an innovator has in any technological area is often dependent on the exclusion a patent can provide – the delay and uncertainty owing to long pendency helps no one.
Promote the role patents play and have played in this country. Speak as an advocate on Capitol Hill. The patent system has played a role in defining the United States since inception. It is not anachronistic. It plays the same role now, as it ever did. The system needs a “cheerleader”, not a “qualified endorsement”! Who better to play that role than the Director of the USPTO? The patent system is a force for good – in all technologies and for all purposes. It encourages and it discloses and it rewards. Keep it simple. Life-saving drugs are developed. New methods create efficiencies. New materials change industries. The globe is made smaller, and people are more connected. There are few things that can be described in such first order adjectives as the patent system. People, across the political spectrum need to know the Director of the USPTO is an advocate for the system that person administers.
If the new Director would read this and have the PTO staff read it, at all levels, and then act on it – I would be much obliged.