Iancu: ‘We will not continue down the same path’

By Gene Quinn
April 11, 2018

“We are at an inflection point with respect to the patent system itself. As a nation, we cannot continue down the same path if we want to maintain our global economic leadership. And we will not continue down the same path,” Iancu explained.

USPTO Director Andrei Iancu at the U.S. Chamber of Commerce, April 11, 2018.

Many people see patents as a reward, which is a skewed way of viewing the system, explained Patrick Kilbride, Vice President of the Global Innovation Policy Center of the U.S. Chamber of Commerce earlier this morning as he opened a symposium titled Investing in American Innovation: Is the U.S. Patent Environment Promoting or Limiting Investment.

Instead of viewing patents as an after the fact reward, Kilbride explained that the Chamber views the intellectual property system itself responsible for innovation because of the incentives provided on the front end of the process. “The patent system itself can do this because innovators can obtain investment… because there is a fair expectation of return on investment.” Unfortunately, as Kilbride went on to explain, “today, the system seems to be out of whack.” A U.S. patent has been undermined as an investment asset.

The first speaker of the day, the keynote speaker, was USPTO Director Andrei Iancu, who in an important policy speech, told those gathered at the U.S. Chamber of Commerce that the U.S. patent system is at an inflection point, and that the nation cannot continue down the path we are currently on if we as a nation which to remain economically successful.

“We will not continue down the same path,” Iancu pledged emphatically during what can only be described as a major policy speech that gives an important look into what the new Director things on a variety of issues.

“The patent grant is less reliable today than it should be. This onslaught has come from all directions,” Iancu explained. “The rhetoric has focused on certain abuses instead of the incredible benefits the system brings.”

“We are at an inflection point with respect to the patent system itself. As a nation, we cannot continue down the same path if we want to maintain our global economic leadership. And we will not continue down the same path,” Iancu explained.

While Director Iancu’s speech should be viewed as required reading, for different reasons, the other key aspects of the speech that particularly caught my ear were:

  • “In 2016, Western Digital acquired SanDisk for $19 billion. But think about it: Without patents, how could someone like Dr. Harari risk everything, put aside his secure career at an established company, and strike it on his own?”
  • “American invention changes the world. Indeed, with American patents, humans made light, began to fly, treated disease, and enabled instant communications across the globe from tiny devices in our pockets.”
  • “[H]ow exactly do we translate this into a better patent system? Here’s a start: when we write, interpret, and administer patent laws, we must consistently ask ourselves: Are we helping these inventors? Whether it’s an individual tinkering in her garage, or a team at a large corporation, or a laboratory on a university campus—we must ask ourselves: are we helping them? Are we incentivizing innovation?”
  • “[O]ur current law surrounding patentable subject matter has created a more unpredictable patent landscape that is hurting innovation and, consequently, investment and job creation.”

UPDATE 1 at 10:25am EST — The USPTO has released the transcript of Director Iancu’s speech. Several quotes were slightly updated to coincide with the official transcript.

UPDATE 2 at 10:50am EST — Adding the additional key aspects of Director Iancu’s speech. 

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 20 Comments comments.

  1. Night Writer April 11, 2018 10:42 am

    Nice words.

    (It is true that the onslaught has come from many corners. We need someone smart enough to refute the bad arguments (from people like Lemley).)

  2. Pro Se April 11, 2018 11:00 am

    Interesting, as I wait for the institution results on my 12th collective IPR challenge (recycled from the last challenge with a 102(b) failing so-called” publication reference added as the “missing piece” from the IPRs before it).

    Why would anyone with meaningful breakthrough technology or a new life saving cure trust the United States with it’s solutions in today’s IPR infringer friendly climate?

    I received an invitation to join a tech incubator in Singapore. I can’t commit but those invites used to come from California tech incubators before patents were stripped of meaningful power.

    My personal bar now is Oil States. If the SCOTUS uphold the IPR process, I’m considering burning all 6 of my patent copies on a Twitter live feed.

    The do or die for U.S. patents is Oil States… for me, Oil States means I can stop wasting my time in the PTO and start whacking some defendants in District Court, or immediately face 20 more IPRs overnight from Unified Patents and RPX subsidiaries.

  3. Greg DeLassus April 11, 2018 11:47 am

    * “[W]hen we write, interpret, and administer patent laws, we must consistently ask ourselves: Are we helping these inventors?… Are we incentivizing innovation?”

    Yes, yes, and a thousand times, yes. This is exactly the question that everyone charged with administering the patent system should ask themselves at every single opportunity. We should have this question printed as a wall-paper banner and used to decorate the office of every examiner, every SPE, every APJ on the PTAB, and every CAFC judge and law clerk. It is encouraging to see that the PTO director is asking this question.

    * “[O]ur current law surrounding patentable subject matter has created a more unpredictable patent landscape that is hurting innovation and, consequently, investment and job creation.”

    Too true. I wish that there were more that Iancu could do to fix this. Unfortunately, this is mostly a mess of the courts’ making, and it will require the courts (or Congress) to fix it. There is not much that the PTO can do on this score.

  4. Greg DeLassus April 11, 2018 11:51 am

    “Why would anyone with… a new life saving cure trust the United States with it’s solutions in today’s IPR infringer friendly climate?”

    Er, because the U.S. is the world’s largest market. If you want to make money, you have to sell in a market where the people have money to spend. To say to oneself “I so dislike the patent regime in this country that I will not willingly take their money in exchange for my product” is a rather odd pose to strike. Anyone may do what they like, but to my mind, it would be a bit odd for a pharma innovator to refuse to do business in the most lucrative pharma market in the world.

  5. angry dude April 11, 2018 11:53 am

    Pro Se @2

    “If the SCOTUS uphold the IPR process, I’m considering burning all 6 of my patent copies on a Twitter live feed”

    Dude,

    Would it make more sense to burn your patents on the steps of Supreme Court ?
    (and post video recording on twitter and wherever else possible)

    I can join you as many others I’m sure

  6. angry dude April 11, 2018 12:00 pm

    Greg DeLassus@4

    Dude, you are spewing ignorance

    “life saving cure” can mean biotech – one of the hardest hit fields

    And pharma itself is the only remaining field where US courts actually uphold *exclusive* patent rights (with some exceptions lately)

    Otherwise there would be no pharma industry in the US – it would literally collapse overnight under the pressure of cheap generics

  7. Greg DeLassus April 11, 2018 12:06 pm

    angry dude @6

    “Dude, you are spewing ignorance.”

    If you say so. From where I am standing, your assertion that “pharma itself is the only remaining field where US courts actually uphold *exclusive* patent rights” is a rather effective response to Pro Se’s @2 question “Why would anyone with… a new life saving cure trust the United States with it’s solutions in today’s IPR infringer friendly climate?”

    You can *say* that I am “spewing ignorance,” but substantively you are making my point for me that Pro Se’s view of the situation is *odd*.

  8. Ternary April 11, 2018 12:42 pm

    Hopeful. But seeing is believing. At least we all agree that the current situation is not good.

  9. Brian Keith Buchheit April 11, 2018 1:35 pm

    Encouraging article/words.

    Regarding a possible negative Oil States determination (upholding IPRs) and burning patents (pro se @2; angry dude@5) in response … How many people could we get ? I, personally, could show up and burn 10 to 20 of my patents … if we had enough participation … it could help. Getting 100/1000 or more inventors – each burning a set of patents at an event would make a statement. Could/would some of the high-profile contributors (Michael Shore; Josh Malone; etc) join ? Just a thought. I’d recommend doing it in front of Congress to encourage fixing the law(s).

  10. Steve Battaglia April 11, 2018 1:35 pm

    Why shouldn’t Iancu simply “freeze” all appropriate IPR’s until he personally has a chance to review them? He sets the in house process and he knows the problems within. Why shouldn’t all of those USPTO’s in conflict with CAFC findings be frozen?

  11. Pro Se April 11, 2018 3:35 pm

    @4 – a Pharma company spends $1bln on 15 years of R&D to finally produce the world’s greatest cure… and Generic Pharma comes along, claim the last 15 years invalidates with 20 pieces of references, 10 companies flood the market with low cost clones when the inventing Pharma get jerked out their patent rights…

    It’s worth more today to be the Generic Pharma and just challenge new patented discoveries in medicine.

  12. Pro Se April 11, 2018 3:39 pm

    My defendants would love to point out an “arrest” as a character assassination tactic in my cases should the DC police chose to not be keen to what they would charge as attempting “arson” to the Supreme Court lol…

    Were’s a good ‘ol rock throwing at tanks protest when we need one!

  13. Pro Se April 11, 2018 3:42 pm

    @9 – Congress would be a go for me. Perhaps a controlled furnace apparatus that would constitute a lawful protest.

  14. Greg DeLassus April 11, 2018 3:54 pm

    @11

    That is quite a horror story you describe, but it looks largely fictional to me. How many actual drugs can you name for which all of the IP was wiped out by IPR and 10 generic companies flooded in? I notice, for example, that “[o]nly 39% of biotech/pharma patent claims were held unpatentable by a final written decision at the PTAB, compared to 64% of claims in the chemical field, 56% of claims in the electrical field, and 47% of claims in the mechanical field” (URL below).

    Moreover, remember that for a generic to enter the market, it is rarely sufficient merely to invalidate the independent claim. Usually, the independent claim in a pharma patent is there to protect the patentee from *branded* competition. Even fairly narrow dependent claims are enough to stop *generic* competition. Generics typically need to invalidate all or almost all the claims on the Orange book before the FDA will approve their application. At a 39% invalidation rate, it does not look like too many generics are getting there with IPRs.

    https://www.polsinellionpostgrant.com/blog/2017/6/2/a-brief-overview-of-pharmaceutical-iprs-and-statistical-outcome

  15. Pro Se April 11, 2018 5:27 pm

    @14 – So are we to assume any new breakthroughs in patented medicine will comprise more than 1 patent, where that 39% invalidation figure would signal an onslaught of odds. With notoriously complicated specifications and the advanced Markush claim structure, finding 30% invalidations in Pharma patents in my opinion is actually the worst statistic being that Pharma patents are the most advanced and definite in structure (or else the formula compiled wont work).

    Back in 2013, most though Pharma patents were safe from this IPR mess, the statute going for “low” quality business and obvious computer method patents… These complicated patented medicine formulas are falling as “obvious”, which are absurd.

    Look at what the group behind Restasis is going through… the PTO seems to be waiting until someone petition to invalidate using Visine as prior art, believe me, as hyperbolic as it may sound, its a very real issue on critical single issued patents.

  16. Pro Se April 11, 2018 5:28 pm

    ^On mobile, please excuse typos.

  17. Curious April 11, 2018 6:01 pm

    Admirable words … I want to see some action. I want to see TC3600 stop automatically assuming that every patent application that crosses their path is automatically deemed patent ineligible subject matter. I want to see the PTAB become a tribunal that impartially weighs the evidence — not one that puts their finger on whatever side that is advocating for rejecting/invalidating the application/patent.

    Enough words, let’s see some action.

  18. Joe Allen April 12, 2018 11:06 am

    Gene: great article, nice to see encouraging news to start the day. Director Iancu is also speaking on April 19th along with Sec. Ross and Under Sec. Copan at the “Unleashing American Innovation Symposium” launching the Administration’s Return on Investment initiative to maximize benefits from the American taxpayer’s investment in federally funded R&D. Hopefully the encouraging words in today’s column will soon be taking root in concrete actions.

  19. Tiburon April 16, 2018 7:49 pm

    “[H]ow exactly do we translate this into a better patent system?”

    This seems to put the horse before the cart. Patents may play a role in some innovation, but clearly as we see in the past decade, innovation is occurring without patents. Patents are just one small piece in a big system. Careful consideration must be applied to balance *ALL* innovators – not just the business models that rely on patents.

  20. Lukasz May 10, 2018 3:29 pm

    I think its a step forward on the path of human evolution. Projects like Labstart among vast competition will push humity forward on the path to reach the stars and all the mysteries universe holds

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