Posts Tagged: "President Donald Trump"

On Friday, August 25, 2017, the Trump Administration announced several nominations, one of which was the nomination of Andrei Iancu to be the next Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (USPTO). Sources had expected this announcement could have come as early as the beginning of July… The fact that Iancu represented TiVo, a patent owner, against big tech in Silicon Valley will undoubtedly lead to a warm reception in certain patent owner segments of the patent community. On the other side of the coin, Iancu’s work in the biotechnology sector will undoubtedly lead to a cold, if not hostile reception.

A group of private companies, professional associations, conservative policy organizations, and investors/commercializers sent a letter to Commerce Secretary Wilbur Ross urging the Trump Administration to pick as the next Director of the United States Patent and Trademark Office someone who “recognizes the value of patents in connection with growth of the U.S. economy, and grasps the fundamental fact that a patent secures a property right.” Headlining this coalition is the American Conservative Union, Conservatives for Property Rights, Eagle Forum Education & Legal Defense Fund, and IEEE-USA.

“Filing a trademark application with the goal of claiming a right to a particular term – with nothing more – is a fundamental misunderstanding of our trademark laws,” Alston & Bird partner Jason Rosenberg, explained. “Individuals and corporations rushing to design t-shirts and coffee mugs with phrases like ‘What the covfefe?’ on them aren’t likely to be able to claim ownership of the term, or stop anyone else from using it. You cannot simply hear a word you like, file a trademark application, and claim it as your own.  In the United States, the law requires more.”

Conventional wisdom in patent political circles says Iancu, but the pro-patent community has long supported Phil Johnson, although not in a particularly vocal or effective way. With a Koch backed entity like the Taxpayers Protection Alliance getting involved there is no doubt Johnson’s chances have been enhanced. If other Republican donors, operatives and think tanks were to follow the deal that may have seemed like a done deal for Iancu might quickly become not so much a done deal after all. In other words, if pro-patent Republicans get off the bench to support Johnson there might just be a July surprise.

The Supreme Court has long stated patents are property rights, and the statute says they are to be treated as they are property rights. Taking property rights away with such a fundamentally flawed process is practically un-American… It is absolutely essential for the President to pick someone who believes patents are private property rights, not public rights. The next Director should also believe that as a property right title in a patent must at some point quiet in order for ownership to be certain and investment to be property incentivized, because without ownership questions resolved only a fool would invest the sums necessary to take most paradigm shifting, game changing innovation to market.

The USPTO’s Obama holdovers Michelle Lee and Tony Scardino are simply co-opting the exact language used in Obama’s budgets for fiscal years 2015 to 2017 into Trump’s 2018 budget and then directly attributing Obama’s policies and statements to President Trump even though Trump has never taken a position on anti-patent legislation… Are these failed Obama era policies now carried over into the Trump Administration by Obama holdovers simply mistakes? Some sort of scrivener’s error? Or is it a direct attempt to carry over failed Obama policies in the name of President Trump? You be the judge. Perhaps you can tell me: Is Trump being googled by Obama holdovers? Or is Trump himself the swamp?

Under President Trump’s FY 2018 budget the USPTO will receive $3,586,193,000 from fees collected and to be available until expended. This appropriation would result in $0 being provided to the USPTO from the general fund of the United States. Any fees collected by the USPTO in excess of that amount would be deposited into the Patent and Trademark Fee Reserve Fund and remain available until expended. There does not appear to be any mention of any fee diversion anywhere, which would mean the USPTO has dodged the fee diversion hands of an often greedy federal government who over the last 30 years has frequently diverted user fees to other purposes.

One of the most straightforward steps President Trump can take to steer the ship of state on its new course is to put good people in place throughout the government… At the FTC, President Trump has already made the salutary move of naming Commissioner Maureen Ohlhausen the agency’s Acting Chairman. This early move was a great first step. The even more significant step would be to name Ms. Ohlhausen the permanent chairman of the FTC and to do so quickly.

The beauty of the patent troll narrative was it took little time to absorb and instantly painted a pejorative picture in the minds-eye of the listener. It became easy to repeat. Its bumper-sticker simplicity lead to widespread usage, which ultimately (and quickly) became accepted as fact without much, if any, critical thought. Most important, the strategy by-passed the arcane complexity of its convoluted subject matter by shifting the burden of Congressional persuasion to its victimized and under-resourced opponents… Expect big tech and its leftist bed-fellows to exert more effort to “de-propertize” patents on Capitol Hill and in the courts… Expect proponents of reform to mischaracterize patent reform as a step towards tort-reform, which is nearly comical given that the tortfeasor in the equation is the party that is trampling on the property rights of patent holders through infringement, which is many times purposeful and willful.

What I do know is that the Department of Commerce has created a Regulatory Reform Task Force and that the USPTO will participate on that Commerce Department Regulatory Reform Task Force in some unexplained and rather ambiguous capacity. I have still not been provided the name of any USPTO appointed Regulatory Reform Officer, nor have I been provided the names of any individuals who have been appointed to any USPTO Regulatory Reform Task Force. If you read the comment I received on the record from the USPTO together with the USPTO belief that this comment moots my FOIA request it seems clear that the USPTO will not be forming its own Regulatory Reform Task Force and will not be appointing a Regulatory Reform Officer. Unfortunately, all attempts to get the USPTO to confirm on the record that they will not be forming a Regulatory Reform Task Force and will not be naming a Regulatory Reform Officer have failed.

Fixing America’s patent system is necessary for meaningful economic growth for America’s workers and America’s global competiveness over countries like China. Not surprisingly, Judge Michel thinks that “[w]hile we’ve been weakening our patent system in many ways in recent years, China and other countries have been greatly upgrading their patent systems . . . investment is shrinking here and it’s growing elsewhere.” Judge Michel kept returning to the theme that the lack of new jobs “is the biggest single problem in America today,” and that “whether you talk about job creation or growth or revival of distressed cities . . . the innovation ecosystem is at the heart of the solution.”

In pursuing President Trump’s federal workforce reduction plan the USPTO must target those patent examiners who have long been refusing to do their jobs. Losing these patent examiners to a workforce reduction will cut the “dead weight” from the Office without the Office losing productivity… And another thing that USPTO must do is this: Hire only those fluent in English to be patent examiners. As crazy as it sounds, patent examiners are hired by the USPTO who struggle mightily with the English language. It boggles the mind how a patent examiner who will be required to correspond in writing and speak verbally with applicants and their representatives can be employed for a position when they are not fluent in English, which is the official language of the Office.

The old arguments that patents inhibit innovation, and non-exclusivity with compulsory licensing leads to a brave new world are now in vogue. We’ve stood at this fork in the road before. It requires courage to reject the easy path downward and restore the system which created our prosperity. If we lack the will, we have no one else to blame as we plunge deeper into the mire. That’s the last place anyone wanting to drain the swamp while growing the economy should go.

Confused by USPTO stonewalling, I sent a FOIA request to the Office. Is it possible that the USPTO is not going to name a Regulatory Reform Officer? Is it possible that the USPTO is not going to have a Regulatory Reform Task Force at all? Is it possible that the USPTO will merely participate with the Department of Commerce’s efforts and not engage in their own independent review of regulations? Nature abhors a vacuum, and so too does Washington, DC. I guess this just means we are in a cycle where getting any real information out of the USPTO will require a FOIA request.

If you are not blinded by an agenda you must recognize that patents are linked to economic success, job growth and high wage jobs. If President Trump is serious about making America Great Again and dismantling the regulatory bureaucracy that stands in the way of those individuals and companies that will lead America to the 4 percent growth he wants, he will demand the USPTO once again become a patent friendly agency. It is particularly time for the USPTO to lift the foot off the throat of certain sectors of the biotechnology community and pretty much the entirety of the software industry. It is well past time for the USPTO to stop acting as an arms dealer by selling patents (which takes many years to achieve) and selling patent challenges. There are a great many regulations, as well as interpretations of cases from the Supreme Court and Federal Circuit, that directly and unambiguously inhibit the issuance of patents, or make them quite easy to challenge (or harass).