Posts Tagged: "patent policy"

The next Director of the Patent Office will have enormous power to turn things around. He or she can make the currently lopsided system fair to all stakeholders. Congress built the mechanism into the very Act of Congress that gave birth to the PTAB. The Director holds plenary discretion to deny any petition, for any reason… Beyond discretionary authority, the Act gives a wide berth for the Director to prescribe regulations. For example, 35 U.S.C. § 316(b) permits the Director to consider a number of factors when making those regulations: “the effect of any such regulation on the economy, the integrity of the patent system, the efficient administration of the Office, and the ability of the Office to timely complete proceedings.” The Director “shall prescribe” a regulation “setting forth the standards for the showing of sufficient grounds to institute a review under section 314(a).” 35 U.S.C. § 316(a)(2). Using the proper factors, the Director can certainly characterize a petition that threatens profound unfairness to a particular patent owner as one that impinges on “the integrity of the patent system,” and thus should be denied.

First, I continue to wish for patent eligibility reform in Congress that would overrule Mayo, Myriad and Alice, although I am mindful of both how naive that sounds and dangerous it could become given competing interests at play. Of course, there is also a very real possibility any statutory reform would simply be ignored by the Supreme Court anyway, as they cling to the judicially created exceptions to patent eligibility that find no support anywhere in the statute or Constitution. Second, I am again also going to wish for meaningful copyright reforms and/or real Internet industry cooperation that recognizes the important rights of content creators, both large and small. It is too easy to steal original content with impunity and that threatens content creators large and small. Finally, while I would like to wish for an end to post grant procedures, I’ll remain content to more modestly wish for a new PTO Director unafraid to reform the post grant process in ways that remove the systemic biases that make the proceedings hopelessly one-sided against patent owners.

It is one again time to take a moment to look back on the year that was, reflecting on the biggest, most impactful moments of 2016. For us that means looking backward at the most impactful events in the world of intellectual property. As you might expect, the two recurring themes in this 2016 patent year end review relate to patent eligibility and the Patent Trial and Appeal Board.

For a many years, the pied pipers of the anti-patent lobby whistled the patent troll melody and Congress, desperately in need of a glorious bipartisan victory, pushed and ultimately passed inventor killing legislation… For whatever reason, 2016 represented the year that Congress itself, or at least enough Members of Congress, got serious about considering the negative effects of pandering to the anti-patent lobby. Those effects are now clear and the stage is set to turn it back. Of course, we can anticipate there will be new pushes for patent reform in 2017 and beyond. Perhaps some of those attempts at patent reform will be from the pro-patent side, but we need to remain vigilant because the anti-patent lobby has not and will not go away.

Peter Thiel, Reince Priebus and Jared Kushner are hosting technology industry giants for a policy discussion at Trump Tower on December 14, 2016. Patent reform is likely to be on the agenda as it is one of the issues tech giants (along with big banks and retailers old and new) have invested in heavily for over a decade… Is it possible that the positions of these three key Trump advisors will coalesce around a nuanced patent policy in a Trump Administration along the lines of the recent FTC PAE report, which sought to distinguish innovators and their need to enforce patent rights from bad actions of those who employ abusive litigation tactics?

We have known for decades that economies grow when the women in them work. The more that women find ways to contribute their ideas and inventions to the economy, at a rate that at least equals their numbers as half the American population, the better off our country and the world will be.

Congressman Pence worked mostly on patent reform bills via the Republican Study Committee, a well-known group of House Republicans focused on inserting conservative views into public policy including respect for the Constitution and private property rights… During the time Pence served as Governor of Indiana, Purdue University soared to a record numbers of new patents, record numbers of technology licenses and record numbers of start ups based on Purdue University innovations… In July, Governor Pence signed an Executive Order establishing the Indiana Economic Development Corporation as the entity that will coordinate all efforts on behalf of the State of Indiana to accelerate innovation and entrepreneurship. Perhaps most interesting, the Order specifically acknowledges that increased innovation helps make communities more vibrant and spurs economic growth, higher wages and job creation.

In the past decade, economic growth, wage growth, business investment and productivity growth have declined dramatically. Economists have discovered that productivity growth alone explains the dramatic development of industrial economies. Yet, the causes of productivity growth are unclear, with capital, labor and technological contributions. My central thesis is that productivity growth is strongly correlated with a strong patent system. Consequently, I will show that the attack on patent rights starting about 2005 is correlated to the decline of productivity growth. The patent system is designed to induce business investment in technology R&D. In effect, the macroeconomic analysis of productivity growth rests on microeconomic phenomena of decisions made by entrepreneurs to risk capital on technology projects in the expectation of a reward.

It is also important to recognize that the social, political and economic impact of strong protections for intellectual property cannot be overstated. In the social context, the incentive for disclosure and innovation is critical. Solutions for sustainability and climate change (whether natural, man-made or mutually/marginally intertwined) rely upon this premise. Likewise, as we are on the precipice of the ultimate convergence in technologies from the hi-tech digital world and life sciences space, capturing the ability to cure many diseases and fatal illnesses and providing the true promise of extended longevity in good health and well-being, that is meaningful, productive, and purposeful; this incentive must be preserved.

Clinton’s tech agenda revolves around five main points that she hopes will lead to American dominance in research and development as well as overall innovation. First, she’s pledged to devote resources to educational innovations that will position U.S. workers well for the well-paying tech jobs of today and the near future. Second, she’s pushing for major infrastructure upgrades that she argues will bring broadband Internet access to a much wider audience. Her third point focuses on protecting American tech export interests to countries abroad. Her fourth agenda point discusses a framework by which concepts of the open Internet as well as personal privacy can be balanced. Finally, her fifth point hones in on the ways that technology can make government agencies more efficient and effective.

Clinton’s proposal for accomplishing this goal would be twofold: (1) to reduce excessive patent litigation through additional patent reform; and (2) strengthening the operational capacity of the USPTO by allowing the USPTO to keep and spend all the fees it collects. “You are looking at a 14-page detailed document. There is a lot of thought put behind this agenda,” explained Todd Dickinson, former Director of the United States Patent and Trademark Office under President Bill Clinton who was reached by telephone for comment. Not surprisingly, Dickinson has has been an advisor to the campaign regarding intellectual property matters. “Other campaigns will be hard pressed to match the depth and thoughtfulness of these proposals.”

We’re in the business of transforming early stage, publicly funded research into useful products. The odds against success are long as commercialization requires years of hard work, a lot of money and some luck. We’d like to think that this effort is universally appreciated. Many in this profession ignore the public policy debates swirling around, thinking that no one will believe our critics or that someone else will defeat them. That’s a serious mistake.

In 2008 the surrogates did at least increase the emphasis on having some form of post grant challenge procedure in the bill that would pass Congress and be signed into law. Their work began to surface in March 2008 by way of surrogates speaking at public and private events focused on innovation related issues. While the campaigns today may not spend many bytes on patent policy soon enough surrogates will be convening at events around the country to discuss innovation policies. If innovation policies or broader tech issues matter the time to get involved is now. As the field of candidates continues to narrow it will become increasingly more difficult, and more costly, to influence policy.

Donald Trump argued at the New Hampshire debate that our nation’s infrastructure would not happen without eminent domain. While economic development as a justification for eminent domain has been severely criticized, there does not seem to be a similar criticism associated with stripping property rights from patent owners in order to allow technology adopting infringers to distribute what they did not themselves innovate without paying the property owner for the privilege.

Does the Democratic Presidential contest suggest that voters think that traditional views on patents or copyrights are on the way out and that collectivism is on the rise? The so-called “Napster generation” is now definitely 30 something and kissing 40. Millennials and how they are using the Internet for work, life and politics may show us a shift in compensation for creativity that is rewarding inclusiveness, building a community and a base of customers. This contrasts with the more traditional top down, broadcast marketing coupled with enforcement of longer term royalties. Silicon Valley and Wall Street at least have embraced the former, it seems, given how much people love to value unicorns these days. But in the past as unicorns grew up the market would demand adherence to traditional top down norms – think Twitter, for example, which had few patents of their own until they purchased 900 patents from IBM shortly after going public.