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.
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 Rejection – Kristy Haupt, Art Unit 2876
Best Amendment – Marc Carlson, Art Unit 3723
Best Interview – Marc Burgess, Art Unit 3643
Best Prior Art Search – Cheyne Ly, Art Unit 2168
Best Notice of Allowance – Creighton Smith, Art Unit 2656
Best All Around – Erika 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.