Day One of PTAB Masters™ 2022: Tillis and Iancu Chime in on PTAB and Patent System Problems

The first day of IPWatchdog’s PTAB Masters™ 2022 program featured a welcome from Senator Thom Tillis (R-NC), Ranking Member of the Senate Judiciary Committee’s Subcommittee on Intellectual Property, who told attendees that Congress should consider codifying some of the reforms made by former U.S. Patent and Trademark Office (USPTO) Director Andrei Iancu in order to better avoid “gamesmanship” at the Patent Trial and Appeal Board. Tillis specifically called out entities like OpenSky Industries, who last December petitioned the PTAB to institute an IPR proceeding challenging claims from one of two patents involved in VLSI Technologies’ $2.175 billion jury verdict for patent infringement against Intel, which was handed down in March 2021 in the Western District of Texas.

Tillis has used OpenSky as an example of a bad actor abusing the PTAB on several occasions. When Intel originally petitioned the PTAB to institute an IPR on VLSI’s patent, the PTAB discretionarily denied the request under Section 314(a), and VLSI has since characterized OpenSky to the PTAB’s Precedential Opinion Panel as indicative of how “opportunists” seeking to “extract ransom payments” are profiting from the PTAB system.

PTAB Masters™ co-chairs Scott McKeown of Ropes & Gray and IPWatchdog Founder and CEO Gene Quinn both agreed that it was interesting to hear Tillis call out a particular petitioner and that it demonstrated how well briefed he is on these issues. Tillis has been a big supporter of the changes made by Iancu to address such issues during his tenure with the USPTO and said he secured a commitment from incoming Director Kathi Vidal, who has yet to be confirmed by the full Senate, that she will continue those reforms. Tillis told PTAB Masters™ 2022 registrants:

During Ms. Vidal’s nomination process, I asked tough questions on her views regarding these reforms and sought a simple yes or no commitment on whether she would continue them. I’ve made my position clear – any nominee will need to commit to continuing Director Iancu’s positive reforms to receive my vote, and I’m happy to say I’ve received such a commitment. I believe Ms. Vidal will be the leader we need to succeed Mr. Iancu. She will work tirelessly to ensure all inventors get a fair shake before the USPTO.

Day one of the program also included a clip from Quinn’s recent interview with Iancu, who now serves as Senior Adviser (Non-resident) and Co-Founder, Renewing American Innovation Project at the Center for Strategic & International Studies (CSIS), as well as a partner at Irell & Manella. Iancu told Quinn that he has been shocked that more policymakers have not yet made a real connection between IP protection and national security, which is one of the reasons he joined CSIS. Iancu said that “to some extent, we’ve become as a nation complacent” because we are so used to leading on technology, from Ford to the Wright brothers to computer technology and biotech. “We’ve gotten used to being the technology leaders, but the 21^st century is not the same, by a long stretch,” Iancu said. This can be felt on a daily basis in the supply chain issues the United States is experiencing. “There’s a chip shortage in the United States,” Iancu said. “We barely manufacture any advanced semiconductor chips here, and we invented the semiconductor…. I don’t think it’s a coincidence. It goes hand in hand with the systematic weakening of our IP system over the last couple of decades.”

Other panels on day one examined the PTAB landscape at age 10; the top issues for the PTAB in 2022; and the PTAB as a hurdle to patent monetization. Tomorrow’s panelists will examine discretionary denials in the context of the Western District of Texas, tactics and strategies for avoiding institution in the first place, and the resurgence of reexamination.

The PTAB Masters™ 2022 program will run Monday, January 24 – Thursday, January 27 and is presented by IPWatchdog®, and co-chaired by Scott McKeown and Gene Quinn. To join us for more on the Patent Trial and Appeal Board from the viewpoint of both the patent owner and petitioners challenging patents, register for free here.