The One Word that Will Help Restore the U.S. Patent System

By Gene Quinn
May 30, 2019

“When the pharmaceutical people are under attack, the high-tech people go and hide, and vice-versa. And as long as that happens, then we have no chance of winning.”

The following is adapted from Gene Quinn’s speech delivered at the Eagle Forum Education & Legal Defense Fund’s May 22 event, “The Road Back: Restoring American Patents.”

https://depositphotos.com/59096719/stock-photo-change-one-thing.htmlBased on the age of many of us in the room, President Reagan was probably the first president many of us remember. And I mention this because we need another President Reagan—another person like that, who sees the power of the patent system.

Upon taking Office, President Reagan told the then leaders at the patent office that the backlog of unexamined patent applications was unacceptable and he wanted it brought down to 18 months in his first term. The leaders at the patent office told him that that was simply not possible. That’s how bad the backlog was then. And then President Reagan and his advisors asked whether it would be possible to reduce the backlog to an average pendency of 18 months within two terms, assuming he would be given two terms. And they said, “yes, we think we can do that within two terms.”  And they didn’t quite get it done, but they got really, really close. They got to around 18.2 or 18.3 months average pendency by the end of President Reagan’s second term. And it was because President Reagan invested in the patent office.

President Reagan gave the patent office the resources they needed. And it shouldn’t be a surprise as to why. If we put ourselves back at that moment in time, everybody believed that we were going to be buying Japanese everything. Now, I can’t understand why others don’t see this threat, and I think many in the room do understand the threat is real, but soon we are going to be buying Chinese everything, and it’s not because they’re stealing our intellectual property. This is the thing that the popular media gets completely wrong. I’m not going to say that there aren’t companies that aren’t stealing intellectual property because that would be naïve, but U.S. companies are willingly giving away intellectual property to get market access in China. We are eating our own seed corn; it is that simple. So, that’s a problem.

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The Bad News

Today, I’m supposed to be speaking about the path forward. I’ve given this a lot of thought and I have only one word that I’m going to leave you with about the future and road forward, but before I give you that one word and why it is so critical, what I’d like to do is talk very briefly about some of the bad news we’ve received just recently.

Just last week, the Federal Trade Commission prevailed even though the documents in the Apple v. Qualcomm case suggested that it was Apple that was manipulating the market and not Qualcomm. The FTC continued to push the case with the thinnest of evidence—maybe even no evidence—and prevailed. I just don’t understand how the FTC can have one view of the patent system and the Department of Justice and the patent office can have a different view of the patent system. It seems that the Trump Administration needs to sort things out and get on the same page.

Meanwhile, the pharmaceutical companies are under investigation for drug prices and there is this belief that high drug prices are related to patents, as if the FDA process to gain approval is both free and doesn’t take any time, and also that the research is free and doesn’t take any time or investment. While no one likes to pay high drug prices, blaming patents and focusing only on the price of the single blockbuster drug misses the point that as many as 90% of all drugs fail, so that means the 10% that don’t fail need to not only pay for themselves but also for the other 90% that fail.

Universities face near constant threat by those who want to get Bayh-Dole overturned and repealed. Now, stop and think about that for one second. Bayh-Dole is characterized as THE most successful piece of domestic legislation since World War II. And there are people out there that want it to be erased, as if it were a mistake, as if it never existed. But the facts are the facts, and Bayh-Dole put an end to a truly byzantine process to license government-funded technology that led to virtually no government funded technology ever being licensed, and is directly responsible for creating 10,000-plus startup companies and hundreds of thousands of jobs.

And we all know the carnage at the Patent Trial and Appeal Board (PTAB) and the 101 jurisprudence that the Supreme Court has left us with.

Fixing the Problems

We have good news though! Senators Tillis and Coons and Congressmen Collins, Johnson and Stivers have released draft legislative language that would, if it ever gets enacted, largely fix the 101 problem. It seems to me that it would not only address the Mayo and Alice issue, but that there is language in there that is explicitly intended to overrule Myriad as well. All of which would be great.

So, this leaves me with the one word that I think is the future for those who support a strong patent system: “Cooperation.”

Now, we all need to look around and notice that the other side that has wanted to have patents eroded have been enormously coordinated in their efforts. And we have not been. Those of us who are on the pro patent side have been fractured. I just read a list dealing with standard essential patents, drug patents, universities, and high-tech troubles. And every one of those groups is fighting as if they are the only ones having a problem and the only ones fighting. And nobody is helping anyone else fight their battles.

It is easy to say: “Well, it’s not my battle to fight, I will fight my battle.”  But I’ve been saying and writing for years that if you don’t get involved and help those with whom you have a natural alliance, eventually the people who are coming after you and your patent are going to get what they want. And what they want isn’t just you not to have your patents in your sector, they want nobody to have patents on anything, period. That is their aim. Make no mistake about it. And at times they even honestly tell you that, when they fund the elimination of stupid patents, for example.

Over the past several years I’ve become acquainted with Mark Cuban a little bit, and as some of you know I’ve had the opportunity to interview him. He is not the flamethrower that you might think. His concern is companies getting sued at too early a stage, and that is a threat for all startups: getting sued before you can get traction. He has a point. Mark Cuban strikes me as far more pro-small business than he is anti-patent, although sometimes his rhetoric may seem otherwise. If you look past the rhetoric, he is concerned with businesses succeeding. And at the core that seems to be the concern of everyone in this room.

The Challenge Ahead

We have done a poor job—even worse than a poor job. The bad actors in our community have defined us and that is because we haven’t cooperated among ourselves, we haven’t provided a united front. When the pharmaceutical people are under attack, the high-tech people go and hide, and vice-versa. And as long as that happens, then we have no chance of winning.

Those of you who are students of history will recall that the way that Alexander the Great won his battles was always by fighting with smaller armies than he prevailed against. The way he was able to fight was to take on one piece of the larger army at a time never confronting the full army at any one time. And I am convinced, and I know that you know, that the larger army is on our side. We have more money, we have more people, we have more stories, and the good and the right is on the side of a strong and vibrant patent system. What we need to do is cooperate and get the message out there. So, I challenge you today to cooperate with one another and see a challenge to one person’s patents as a challenge to everybody’s patents. And by that, we will be honoring the past inventors and giving the future inventors a way to move forward.

Thank you.

 

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ID: 59096719 

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded IPWatchdog.com in 1999. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC. 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 13 Comments comments.

  1. Pro Say May 30, 2019 6:39 pm

    One of the most important speeches in the history of American innovation.

    Sometimes it really does take a village.

    This village.

    Our village.

  2. Night Writer May 31, 2019 8:12 am

    The first president I remember is Johnson. I remember that the person that figured out that patents would help the economy was Carter. He said they would end the great malaise and he was responsible for creating the CAFC (although not enacted until Reagan.)

  3. Greg DeLassus May 31, 2019 11:34 am

    “[T]his leaves me with the one word that I think is the future for those who support a strong patent system: ‘Cooperation.”'”

    Well said!

  4. Andrea Wheeler May 31, 2019 11:35 am

    Replace the word “patent” with “fill in the blank” and this article still applies.
    “It is easy to say: “Well, it’s not my battle to fight, I will fight my battle.” But I’ve been saying and writing for years that if you don’t get involved and help those with whom you have a natural alliance, eventually the people who are coming after you and your “fill in the blank” are going to get what they want. And what they want isn’t just you not to have your “fill in the blank”, they want nobody to have (delete-patents on) anything, period. That is their aim. Make no mistake about it. And at times they even honestly tell you that, when they fund the elimination of stupid “fill in the blank”, for example.

  5. jacek May 31, 2019 12:58 pm

    I just received e-mail from http://www.parp.gov.pl with information about EU grants helping financially small businesses and individual inventors fights legal (patent) battles in courts (Of course EU courts) There is also info about $250,000 grants for small startups and much more for companies registered in EU or having location in EU. The grants start from $40,000 up to $250,0000. When I am learning about US inventors struggle and comparing it to the pro IP approach in EU I feel relief that there is way out of US nightmare. One of my friends just received a draft of patent application done as a pro bono thing by quite sizable US law firm. After reading it we came to conclusion that apparently it was training material for some junior associate. 32 pages full of quite nice but out of the subject disclosures but with completely screwed up claims reading on already existing invention. When I am reading about the EU grants he can use to hire experienced attorney I am starting to think that he should relocate ASAP otherwise he and his really valuable invention is going be thrown to the wolfs by people looking at him as one more statistical victim of collateral damage inflicted on lives so many by US patent system.

  6. Pro Say May 31, 2019 2:24 pm

    Strong patent system = Strong America

    Weak patent system = Weak America

    Simple. As. That.

  7. B May 31, 2019 3:24 pm

    @ Gene “So, this leaves me with the one word that I think is the future for those who support a strong patent system: ‘Cooperation.'”

    Pros-shops should be at the head of this thing you call “cooperation,” but aren’t. Out of the thousands of pros-shops that rely on a strong patent system less than a handful do anything. How hard is it to write an amicus?

    ” Mark Cuban strikes me as far more pro-small business than he is anti-patent[.]”

    Mark Cuban indirectly owns a substantial number of patents that would die under s101 before the CAFC. I wonder if Mr. Cuban would refrain from suing a smaller competitor using one of these patents in a less patent-hostile environment. While I understand Mr. Cuban’s position (I had a tech company that died on the vine under threat of suit in the 1980s), Mr. Cuban’s association with the EFF kills any sympathy I might have for the guy. The EFF is cancer.

  8. Martin Nguyen May 31, 2019 5:10 pm

    So together we can say “Make US patents strong again”

  9. Liberty May 31, 2019 7:05 pm

    Silicon Valley will continue to have a weak patent system and Big Pharma will carve out a section where they will get paid for their patents. Little inventors or patent holders will get nothing. They may fix 101 but will carve out another loophole for Big Tech. Its game over in America and we all can see it now. Gene I have enjoyed your website but even you know there is nothing government will do to stop the lobbyist that are pulling the strings in America.

  10. Anon June 2, 2019 11:11 am

    While in a larger sense, the word “cooperation” is a bit of a “Mother, Apple Pie, and USA” term (no one, in a vacuum, would preach against such), one does NOT cooperate with “enemies” bent on your destruction.

    There is a war going on.

    There simply are eco-political and philosophical camps that simply will not rest until patents are weakened to a point of being next to useless or outright extinguished, or made purely into a Sport of Kings.

    One does NOT “cooperate” with such forces.

  11. Badger June 3, 2019 7:59 am

    Nice job. President Reagan deserves significant credit. The White House and the Department of Commerce “cooperated” with Congress on a bipartisan basis not only on patent reform issues (the CAFC, amendments to Bayh-Dole) but copyright reforms (semiconductor chip protection and the Berne Convention). Cooperation will not occur without majority votes in the House and Senate and a presidential signature. Is this White House willing to cooperate with the Congress?

  12. angry dude June 7, 2019 9:41 am

    First they came for independent inventors, and I did not speak out—
    Because I was not an independent inventor.

    Then they came for small companies, and I did not speak out—
    Because I was not a small company.

    Then they came for universities, and I did not speak out—
    Because I was not a university
    ……..

    Then they came for me (patent attorney) – and there was no one left to speak for me.

    P.S. I told you guys back in 2006 right after EBay – the writing was on the wall

    The keyword is “INJUNCTION”

  13. box7003 June 8, 2019 8:41 pm

    Speedy INJUNCTION, in 30 days or less.