Next PTO Director faces a U.S. patent system at a crossroads

Ever since the United States Supreme Court issued its decision in eBay v. MercExchange in 2006 patent owners have been under siege. Whether it be a never ending series of judicial decisions that have significantly eroded the exclusive nature of a U.S. patent, or the establishment of the Patent Trial and Appeal Board, patents have become greatly devalued. Indeed, in some industries vital to the success of the U.S. economy – software and biotechnology – patents are not just worth less, but may be worthless.

The U.S. patent system is at a crossroads. See The Top 3 Reasons the U.S. patent system is in decline. In both 2016 and 2017 the Chinese government made significant improvements to the patent rules and laws of China. See China relaxing barriers to software and business method patents. As the Chinese landscape for patents and innovation continues to improve we can only expect more innovation to move to China, as investors flee in search of better legal protections – protections necessary to justify the speculative investment in early stage high-tech innovative companies.

Time is of the essence for the U.S. patent system. The 2017 worldwide patent rankings of the U.S. Chamber of Commerce already shows the United States tumbling from 1st place into a tie for 10th place with Hungary.

With strong and principled leadership it is not too late to turn the tide and restore the United States patent system to its former glory. With this in mind, I recommend in the strongest terms possible that the person selected as the next Director of the United States Patent and Trademark Office (USPTO) share a vision for a stronger U.S. patent system that is once again the envy of the world.

A pro-patent agenda lead by a pro-patent leader is consistent with the President’s pro-growth agenda, and will return the U.S. economy to GDP growth of 3% to 4%. Such growth is possible if the substantial patent burdens and obstacles placed on patent owners and patent applicants were to be removed. Unleashing the patent system and tapping into Angel and VC capital is the solution.

It is imperative that the next PTO Director hold certain fundamental believes. At a minimum, the next Director must:

  1. View issued patents as an important and valuable private property right.
  2. Believe issued patents are entitled to the statutory presumption of validity in all forums.
  3. Be committed to fundamentally reforming post grant procedures in order to guarantee both procedural and substantive fairness.

While there are many interested and qualified candidates to choose as the next Director of the USPTO, the next Director must be an individual who fundamentally believes in a strong U.S. patent system, a strong and exclusive U.S. patent grant, and someone with sufficient breadth of experience to address the myriad issues facing the Office and the U.S. patent system.

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10 comments so far.

  • [Avatar for Night Writer]
    Night Writer
    July 2, 2017 11:06 am

    The reality is that the patent system is on its knees. One or two more strokes of the anti-patent sword will end our patent system in any type of recognizable form.

    Another anti-patent director like Lee or another devastating SCOTUS case (like KSR or Alice) or another IPR like thing and we will reach a tipping point.

  • [Avatar for Stephen Curry]
    Stephen Curry
    June 28, 2017 02:01 am

    that Darryl Issa is telling a lie.
    David Kappos set up the silicon valley USPTO office.

    https://www.bna.com/new-name-silicon-b73014453240/

    also, people who invent their own Federal Holiday should not have Federal buildings named after them.
    http://www.ipwatchdog.com/2016/08/17/uspto-director-lee-sued-declaring-federal-holiday/id=72006/

  • [Avatar for Mr. Patent Agent]
    Mr. Patent Agent
    June 27, 2017 04:16 pm

    If the new USPTO director is going to implement or emphasize further patent quality initiatives, primary examiners need to be held more accountable. Supervisors still tend to leave primary examiners alone and many (but certainly not all) take advantage of it and churn out junk office actions on a daily basis.

  • [Avatar for Ziggy]
    Ziggy
    June 27, 2017 03:25 pm

    Silicon Valley Inventor @ 6, I agree. It took the infringer lobby about 10 years to get us to where we are. It may well take another 10 years to go back to where we should be. First step is stopping that pendulum from swinging even further towards the total annihilation of the US patent system.

  • [Avatar for Silicon Valley Inventor]
    Silicon Valley Inventor
    June 27, 2017 12:53 pm

    Bluejay @4, Anon is correct that the forces in favor of weakened patent protections and efficient infringement remain codified and ingrained in law (AIA) and in positions of power throughout the bureaucracy that issues patents and rules on them (e.g., Wilbur Ross). There has always been a swinging pendulum but the political climate pushed so far and so fast against patents that it likely will take commitment in every branch of government to right the ship. That is not as straightforward as electing a sympathetic president (and it remains to be seen how committed to IP he really is). But it is certainly better than electing another Google pawn.

  • [Avatar for Anon]
    Anon
    June 27, 2017 12:00 pm

    Bluejay,

    The presidential election was not the patent referendum that you appear to want to make it out to be.

    Your sense of over-confidence is fully misplaced.

  • [Avatar for Bluejay]
    Bluejay
    June 27, 2017 11:40 am

    Anon@11:08

    The companies that want a weak patent system lost the election. Their candidate spent $1 billion, had the media on her side and still lost. It’s payback time for the winner.

  • [Avatar for Anon]
    Anon
    June 27, 2017 11:08 am

    Excellent – albeit incomplete – writings, Gene.

    I say incomplete because the forces that exist that pushed for the vast weakening of US patents have not gone away.

    Their arguments have not gone away.

    Their desires for a weak US patent system have not gone away.

    The effects of ALL of these in the institutions (you reference the “Top 3 Reasons thread – and my comment there carries along with your reference) STILL exist, and it is those ingrained effects that ALSO must be dealt with. To deal with them, ALL sides need to recognize the effective governmental capture that has occurred.

    Only after bringing both sides to the table and recognizing (objectively) where we are today will there be the ability to chart a course for effective change.

    Those on one side wanting strong patent rights will (quite naturally) applaud your article here. But there will be no traction whatsoever as long as “the other side” does not recognize just how dire and pivotal a position the innovation ecosystem is currently at.

    (just this morning an another thread, I rebutted a poster who linked to the EFF mantra on how the proposed legislation of the Stronger Patent was in the wrong direction: http://www.ipwatchdog.com/2017/06/21/senators-coons-cotton-introduce-stronger-patents-act-2017/ )

  • [Avatar for Bluejay]
    Bluejay
    June 27, 2017 10:32 am

    Amen brother Gene.

  • [Avatar for CP in DC]
    CP in DC
    June 27, 2017 10:17 am

    Gene

    I would add to your list: The director must want to improve patent examination.

    Courts and the efficient infringer lobby parade the poorly crafted patents as proof that patents deserve less deference. The PTO talks about “patent quality” but does not address the fundamental problem, bad patents come from bad examination and bad examination comes from bad examiners. Yes there are bad applicants as well.

    Examiners may have low standards or excessively high standards. Low standards give us patents that should have never issued. Too high a standard, and examiners never allow worthy patents even after reversal at the PTAB.

    This site has repeatedly written about the bad examiners, their behavior, and their predisposition to ignore current law or reversals by the PTAB, and their low allowance rates. An examiner that ignores the law or a reversal by the PTAB is as problematic to the patent system as the other issues you mentioned.

    As you mentioned, China improved its patent system, so why can’t the US? If examination improves and yields patents difficult to invalidate, the deference will follow.