Posts Tagged: "Trump Administration"

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).

The problem with not having an independent invention defense, according to Lemely, is that people who invent themselves couldn’t possibly find out about what others have invented because these inventions lay in unpublished patent applications at the Patent Office. “You have people who genuinely tried not to infringe,” Lemley said… While Professor Lemley is entitled to his opinion, and he is an excellent and formidable attorney that no one should ever take for granted, he is not entitled to his own facts. Deliberate disdain for patent property is a purposeful business model driving mega-tech IT incumbents. This business model is called “efficient infringement.” Efficient infringement is a cold-hearted business calculation whereby businesses decide it will be cheaper to steal patented technology than to license it and pay a fair royalty to the innovator, which they would do if they were genuinely trying not to infringe as Professor Lemley suggests.

According to the announcement, the members of the USPTO Working Group will also make up the USPTO regulatory Reform Task Force… The names of the members of the Working Group/Task Force were not provided in the USPTO announcement, although the announcement does say: “Nicolas Oettinger, Senior Counsel for Regulatory and Legislative Affairs in the USPTO’s Office of General Counsel, will lead this effort.” That presumably means that Oettinger has been designated the Regulatory Reform Officer by Director Lee, although that remains unconfirmed.

With a proposed budget of $7.8 billion and $1 billion in cuts to identify, questions arise about where those cuts will come. Is the USPTO budget safe?Will the cuts be across the board cuts with the USPTO being asked to account for 35% of the $1 billion, which would reduce the USPTO budget to $2.967 billion for FY 2018? According to a chart prepared by the Intellectual Property Owners (IPO) Association, the largest single fee diversion came in 2011 when $209 million was diverted from the USPTO. If the USPTO must cut its budget by some $350 million that would far and away be the largest single year fee diversion in the history of the U.S. patent system.

Donald J. Trump, the 45th President of the United States (POTUS), managed to get elected based at least in part on his real or perceived success as a businessman. In the last dozen years or so, he achieved this reputation in part by licensing his “Trump” brand name—a kind of intellectual property (IP)—to third parties… “It may come as a surprise to most people that many of Trump’s buildings, resorts and golf clubs aren’t even owned by him,” says Sonia Lakhany, trademark attorney and owner, Lakhany Law, PC, a national award-winning trademark law firm. “They just bear his name for branding purposes. In return, Trump collects fees for the use of his brand, without ever investing a dime into the actual projects.”

At the quarterly PPAC meeting, USPTO Deputy CFO Frank Murphy (listed on the agenda as Acting CFO) stated that USPTO is moving forward with its proposed $710 million fee increase, despite the Trump’s ‘One-In Two-Out’ Order. PPAC Member Bernie Knight (former General Counsel of USPTO) then asked Mr. Murphy whether the $710 million fee increase is subject to Trump’s ‘One-In Two-Out’ Order. Mr. Murphy responded that he does not believe the $710 million fee increase is subject to Trump’s ‘One-In Two-Out’ Order because, in his view, it is not a “new” regulation but rather is an “amendment” to an old regulation. Mr. Murphy also responded that, even if the $710 fee increase were subject to Trump’s ‘One-In Two-Out’ Order, the USPTO would look to eliminate two regulations in other agencies within the Commerce Department, not the USPTO’s own regulations. But how can the USPTO eliminate regulations in other agencies? Can you imagine the likely fight that will occur between the USPTO and those other Commerce Department agencies (NIST, Census, ITA, NOAA, BEA, BIS, NTIA), as the USPTO seeks to gore the ox of these other agencies, without offering any of the USPTO’s own regulations for repeal?

In this Executive Order, President Trump orders the heads of each agency to designate a Regulatory Reform Officer (RRO) within 60 days. In addition to the designation of a Regulatory Reform Officer, the Patent Office (along with many other agencies) will be required to create a Regulatory Reform Task Force, which will be made up of the RRO, the agency Regulatory Policy Officer, a representative from the USPTO’s central policy office, and at least three other senior level USPTO officials as determined by the Director of the USPTO. When considering the recommendations of the Regulatory Reform Task Force, the agency head has been told to prioritize those regulations identified as being outdated, unnecessary, or ineffective.

One of the many questions about the Trump Administration after its first month is how it views the U.S. patent system. I asked several experienced veterans of the patent reform wars to review the article and share their thoughts on some key questions. Do you feel that the Trump Administration will be pro-patent? Can you provide any reasons for your opinion? What do you make of the decision to retain Michelle Lee? Do you think the Administration and Congress will work together on patent reform this session and if so, what elements are most likely to be addressed?

The savings impact of directly negotiated drug costs is considered negligible, but intrusion into biomedical pricing will destabilize life science commercialization… Any way you slice it, added commercialization uncertainty resulting from even negligible savings will be seen by the private sector as a foot-in-the-door for more government price controlling… Participants in early stage life science development including research universities and medical centers must watch this issue closely and be ready to join MMA’ s more conspicuous defenders if and when MMA’s ban on Medicare direct negotiations suddenly appears.

Sources tell me that the USPTO was prepared last week to issue patents with the signature of Drew Hirshfeld, who is the Commissioner of Patents and seems to be current Acting Director, but at the last minute a decision was made to revert back to Michelle Lee’s signature. This creates several significant problems. First, if Lee is not currently the Director patents that are being issued with her signature are being issued in violation of §153. If we know anything about patent litigators it is that they raise every challenge possible, and it is only a matter of time before the provenance of patents issued during the Trump Administration are challenged as being invalid. I don’t suspect such an invalidity challenge will ultimately prevail, but how many patent owners are going to have to spend many tens of thousands of dollars to fight that challenge?

Sally Yates proves in a very public way why it is a mistake to allow political appointees from the Obama Administration to be held over. But for every public affront how many private episodes will occur where Obama appointees will seek to undermine President Trump? The risk doesn’t seem worth the reward when there are many very capable individuals available and interested. In the patent world, for example, both Phil Johnson and Randall Rader are Republicans. Both have very long and distinguished careers in the patent field. Both Johnson and Rader would clearly take the Patent Office in a new direction and deliver on the Trump campaign promise to Make America Great Again. There are no doubt others who are highly qualified who would also do the same, while being ideologically aligned with the President and the Republican party. So why is there a need to keep Michelle Lee?

Fresh rumors surfaced late last night, however, suggesting that Commissioner for Patents Drew Hirshfeld is currently Acting Director of the USPTO. Two independent sources also told us that an internal candidate has been elevated to the position of Deputy Director of the USPTO, although it is not known whether that is on a permanent or temporary basis. It is believed that the Deputy Director of the USPTO is now Anthony Scardino, who was previously serving as Chief Financial Officer at the USPTO… Whatever the resolution of this matter is, this sad chapter in USPTO history has been grossly unfair to Michelle Lee. Either she is Director or she is not Director. Someone somewhere has to know the answer to this very simple, straightforward question, but no one with authority will comment.

The first full work week for the Trump Administration begins in earnest today, and the United States Patent and Trademark Office (USPTO) continues to decline comment on whether or not Michelle Lee is still Under Secretary of Commerce for Intellectual Property and Director of the USPTO.

How much longer can there be no official announcement regarding the status of Michelle Lee? The continued silence raises very serious questions, particularly given that there have been public announcements made regarding others who have been specifically held over to serve in the Trump Administration. Undoubtedly, at some point continued silence about Lee’s status will mature into questions about her authority and whether any actions she takes are legal or perhaps simply void ab initio… If no answer is forthcoming in very short order someone will need to speak up, at least internally, because from the outside the facts give reason to suspect the possibility that a former USPTO Director may be refusing to relinquish power and the rest of the agency is just going along with it.

If Lee did not resign and she has been asked to stay on as Director why has the Patent Office declined to comment? Further complicating matters, if you visit the Department of Commerce leadership webpage, the position of Under Secretary for Intellectual Property and Director of the United States Patent and Trademark Office is listed as “Vacant.”