I recently had the opportunity to interview USPTO Director Andrei Iancu. In a wide-ranging interview where no questions or topics were ruled out of bounds, we discussed the Patent Trial and Appeal Board (PTAB), inter partes review, patent eligibility and more. Those who have heard Director Iancu speak since he assumed the position as head of the United States Patent and Trademark Office in February have been pleasantly surprised by his forthrightness and candor. He even told me that he is intentionally seeking to raise hopes because a revitalized innovation system is what America needs to compete economically.
Regardless of party affiliation, it behooves the patent and innovation community to support those who understand the importance role inventors play in America’s economy, and the vital role patents play in incentivizing innovation and encouraging investors to provide funding. Therefore, it should be no great surprise that I am a fan of Director Iancu.
To date there has been no reason to be critical. His actions have matched his words, which is unfortunately rare inside the political caldron found inside our nation’s beltway.
For example, during a question and answer period at the U.S. Chamber of Commerce, former Commissioner for Patents Bob Stoll pressed Director Iancu about when the patent community could expect some kind of relief from the Office relating to Section 101. Iancu point blank said that the Office would issue guidance within a matter of weeks. It did not even take that long before the Berkheimer guidance was released.
Director Iancu has in his speeches and one-on-one conversations informed the industry that he is engaging in what I will characterize as a listening tour relating to the PTAB; and he said as much during our interview. In addition to the Office looking at all aspects of PTAB procedure front to back, including the trial practice guide, Director Iancu is listening to the comments, criticisms and suggestions of the industry. The Office has already issued a set of proposed rules that will change the claim construction standard to the Phillips standard, which Is the same as applied in district courts. No one expects this first measure of PTAB reform will be the last.
Director Iancu is also speaking about software patent eligibility in a way much like former USPTO Director David Kappos did in his last speech in November 2012. Software and algorithms obviously need to be patent eligible if America is going to compete in this new technical century that will be defined by artificial intelligence. As Senator Kamala Harris (D-CA) aptly demonstrated by her questioning of Director Iancu when he last testified before the Senate Judiciary Committee, artificial intelligence is driven by software and algorithms.
Whether Director Iancu wants to admit it or not – and he did not want to admit it during our interview – he is inviting Congress to legislatively reform patent eligibility. He is speaking of the need for more certainty and stability for software and medical diagnostics, for example. He then tells the Senate Judiciary Committee that if they should want to legislatively reform Section 101 the Patent Office will gladly assist however possible. While it is understandable that Director Iancu cannot politically be the champion for 101 legislation, he is thrusting it into the spotlight in a way that demonstrates that the Trump Administration is certainly supportive of changes that would address Supreme Court decisions that have decimated much groundbreaking innovation, from artificial intelligence to personalized medicine to medical diagnostics.
It is understandable that inventors, investors and others supportive of strong patent rights would be skeptical, and I’ve heard and read much skepticism.
How much can one man actually accomplish? We’ve lost every battle over the last 12 years – beginning with eBay – so it is foolish to believe things will be different now, right? Perhaps it is but giving up when the finish line could be so close doesn’t seem particularly wise to me.
The loudest voices for patent reform that would further harm inventors in the House will be gone after the 2018 mid-term election due to retirements. Senator Chris Coons (D-DE) lead the hearing for the Democrats when Director Iancu last testified, which is unusual given the Democrats generally follow a strict seniority hierarchy, but everyone knows the patent issue is very important to Coons, so perhaps Democrats on the Committee are starting to defer to Coons who is only gaining in seniority himself. Director Iancu is poised to take the Patent Office in the right direction and seems to have a mandate to do so from above.
If not now, when?
It would be easy to be skeptical, but the patent community should take this opportunity to engage. Despite continued disappointment from the Supreme Court, there is a very real possibility that pro-patent reforms could be achieved within the next 2-3 years. While 2-3 years may seem a long time away, if you are not trying to affect change today you will be too late by the time momentum begins to publicly surface. That’s how DC operates.
So, is the pro-patent community going to continue to lose every battle? Time will tell, but failure to seize this opportunity with a fullness of purpose and dedication to finally come off the benches and do whatever is necessary to prevail will doom this moment.