USPTO Council on Expanding Innovation Gets Mixed Reactions

The U.S. Patent and Trademark Office (USPTO) earlier this week announced the creation of the National Council for Expanding American Innovation (NCEAI), an initiative ostensibly intended to “build a more diverse and inclusive innovation ecosystem by encouraging participation demographically, geographically, and economically.” Reactions to the Council were mixed, with a number of IPWatchdog sources contacting us to alternately express their confusion, skepticism or support. We put out a call for official reactions to share these varying responses, which raise a number of questions to be monitored as the NCEAI moves forward.

Robert Greenspoon, Partner, Flachsbart & Greenspoon, LLC

If the NCEAI rises above the status of a “showcase of names,” it has potential for success to increase social mobility and reduce income inequality.

The NCEAI might seem like a room full of white guys meeting over coffee and pastries to debate inclusion of minorities and women. But the structure of the Council shows signs of being something much better. First, the Council is designed to be visible, accountable and high profile. If even a small quorum of its members become energetic and dedicated to its goals, the Council as a whole has great pull to motivate teams of people to get things done. Second, the Council encourages public feedback and input, thus will operate as a clearinghouse for ideas that can come from anywhere (not just the conference room pastry table). Finally, the Council will appropriately expand its vision beyond just patenting to innovation and entrepreneurship as a whole. Patenting is a means to an end (entrepreneurial success), not the end itself.

The elephant in the room is that the federal government faces strong legal barriers against overtly favoring a minority or interest group over the general public. Thus, don’t expect to see recommendations to water down standards for patentability for targeted groups. What I would like to see is deployment of USPTO staff to the nation’s middle schools (I’m looking at you, [administrative patent judges] APJs) to educate the public about positive outcomes from innovation and patenting. The side benefit—APJs will have to teach why patents are important. Yes, kids will get why they should want a tool that lawfully allows supra-competitive pricing and easier startup financing. Let Lincoln’s words echo through the nation’s public schools, that patenting adds “the fuel of interest to the fire of genius in the discovery and production of new and useful things.”

Jeff Hardin, Business Owner and Independent Inventor

Although I appreciate the intent behind the creation of this council to increase patent participation by underrepresented groups, what about the actual concerns and recommendations provided by underrepresented inventors in the SUCCESS Act study? 

The overwhelming majority of individuals commenting in this study stated not that participation barriers in the patent system reside in the initial pursuit, but that post-grant risks negate the resulting patent, namely, difficulty enforcing patents, PTAB invalidation, and efficient infringement. “What good is a patent if one cannot defend it?” one minority woman succinctly put it.

PPAC asked the USPTO about these risks facing patent seekers, and the USPTO affirmed the SUCCESS Act Report would address it. However, the Report has been called into question by the inventor community, saying it failed to do so. Moreover, the U.S. House Committee on Small Business possesses a letter from SUCCESS Act witnesses saying their voices were ignored. Another complaint might very well be a lack of actual representation of underrepresented and economically-challenged inventors on the NCEAI, reminding me of the “missing critical voice” recently mentioned by John Whealan to the House.

I support equal opportunity in the patent pursuit, such as this council sets out to do, but my testimony specifies that to increase patent participation of underrepresented classes, the ability to defend a patent must come first; otherwise, knowledgeable inventors will continue regarding the patent pursuit as a mere payment to the government to share their inventions with the world, only to have those inventions stolen by efficient infringers.

The creation of this council codifies the SUCCESS Act Report, but inventors who testified call the legitimacy of this report into question. If inventors regard this council as a continued indifference and underrepresentation by the government, their distrust in the patent system will only increase.

Lissi Mojica, Managing Director, Answers IP

As a member of one of the “underrepresented” groups, I am very enthusiastic about this council.  The only way to change the landscape is to provide opportunities to the underrepresented groups. Particularly in STEM careers. As a 20-year veteran of the USPTO, I know they have been striving to achieve diversity with many different approaches. This is a long-haul approach; however, it is the most effective approach in achieving long term success. Let’s hope that the folks assigned to the council reflect the community they are trying help. Kudos to the USPTO!

Josh Malone, Inventor of Bunch O Balloons and Volunteer with US Inventor

The class they claim to want to help is grossly underrepresented on this new council. Only a handful of the 29 members are inventors or small business owners. This is par for the course, as our leaders have jettisoned the democratic merit-based patent system which ACTUALLY encouraged diverse and broad participation in patenting. As inventors have been deprived of meaningful ability to enforce our patents in court or defend them from the PTAB, the patent system has evolved to serve large corporations, lawyers, and bureaucrats. Inventors are weary of being tricked and patronized by out-of-touch elites. Perhaps we will launch our own council.

Jonathan Stroud, Chief IP Counsel, Unified Patents, LLC

This is a phenomenal effort and initiative from the USPTO leadership.  Intellectual property is a driver of wealth and innovation in this country, and for too long it has disproportionately benefitted incumbents and excluded many diverse Americans—whether intentionally or otherwise—from this essential part of our innovation economy.  The LEAP program, the USPTO’s progressive hiring policies, and now the NCEAI, inch us all closer to a future where we all benefit from the American dream, regardless of creed, class, color, gender, sexual orientation, or religion.  More needs to be done in the profession—particularly at firms at the partnership level—but we’re making strides as a bar, and this is an important step forward.

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