The previous director of the United States Patent & Trademark Office, Michelle Lee, had previously worked at Google and was well respected by all major product- and service-focused tech companies for her understanding of the need for a balance in the patent system: a balance between the interests of right holders in valid and enforceable intellectual property rights as well as the interest of the general public in preventing overbroad patents and, particularly, the enforcement of patents that should never have been granted in the first place.
Mrs. Lee's predecessor, David Kappos, came from IBM, a company that has for some time been known for rather aggressive patent monetization (though they rarely litigate) and has, since leaving the USPTO, been lobbying hard for broad and strong patents. That said, he respected legislative and judicial decisions without a doubt, and compared to the current USPTO director Andrei Iancu his actual decisions at the helm of the USPTO were the ones of a centrist, and clearly not those of an extremist. He had his views and beliefs, but a reasonable agenda.
Director Iancu used to be the managing partner of Irell & Manella, a renowned L.A. law firm with a particular focus on patent enforcement. Presuambly they also represent defendants, but interestingly, I've always heard of them only when they were counsel for plaintiffs.
There are various respects in which Director Iancu is trying hard to turn the legislative and judicial tide--which is an agenda that the executive branch of government shouldn't have, but sometimes that's unfortunately the way it is.
Earlier this month I mentioned a recent open letter to Director Iancu and his boss with which numerous major companies and industry organizations urged him not to withdraw the USPTO's support for a position paper on standard-essential patents (SEPs) that goes back to the Kappos era. At around that time, Professor Thomas Cotter's Comparative Patent Remedies blog mentioned a Federalist Society event at which both Director Iancu and Assistant Attorney General Makan Delrahim spoke. AAG Delrahim and his subordinates are an anti-FRAND activist cell in the U.S. government, swimming against the judicial tide--and given Director Iancu's one-sided support of the interests of patent holders, there definitely is a risk of the two becoming (not in a literal sense, of course!) partners in crime against FRAND.
So far, however, Director Iancu's focus has not been on SEPs. The two areas of activity in which his decisions and his rhetoric raise concerns on my part are patent-eligibility law (he'd like examiners to apply the Supreme Court's guidance from Alice and related cases in a way that would simply gut the case law of the top U.S. court) and, especially, the ways he tries to weaken the Patent Trial and Appeal Board (PTAB). The PTAB plays an important hygienic role and contributes to balance in patent litigation by invalidating countless patent claims that should never have been granted, but would otherwise do significant--in some cases even enormous--damage in litigation.
When Director Iancu testified before the House Subcommittee on Courts, IP, and the Internet on May 9, his statement didn't reveal his anti-PTAB agenda. Whatever he said about PTAB just sounded like ensuring greater efficiency and higher quality. But the introductory part of the speech reflected his unbalanced perspective:
"Our overall goal is to ensure that rights owners and the public alike have confidence in, and can rely on, a predictable and well-functioning IP system. This confidence spurs inventors to invent, investors to invest, companies to grow and create new jobs, and science and technology to advance. I will continue to work with my team at the USPTO, with Secretary Ross and his team, others in the Administration, this Committee, and our stakeholders to identify and advance policies and initiatives that are working and reassess those that are not."
This is the mission statement of a patent radical and of someone who doesn't appear to understand that he has a responsibility not only for patentees and for litigation firms like the one he used to chair, but also--in fact, even more so--for the economy and society at large.
The unspecified reference to "the public alike" doesn't counterbalance his focus on "rights owners" and their interests.
The way Director Iancu modified the claim construction standard for post-grant reviews (by instructing PTAB judges to apply the narrower standard used in infringement proceedings) has nothing to do with greater predictability: decisions were equally predictable before, but it used to be harder to defend weak patents.
I may go into more detail on claim construction in post-grant reviews on another occasion. What has me concerned with a view to what might happen next is a letter by Senators Tillis (R-N.C.) and Coons (D-Del.) urging him to do something he'd presuambly be more than happy to do: to disallow so-called "serial [PTAB] petitions." Those senators, and others, are also behind an attempt to vitiate § 101 (patent eligibility), which the Electronic Frontier Foundation has accurately described as a "disaster for innovation."
The "serial petition" matter is a more imminent threat because Director Iancu might take some executive action, while changing patent-eligiblity law would require a legislative process that reasonable forces could still influence.
By "serial petition," the enemies of PTAB mean that more than one petition challenges a given patent. But as a litigation watcher I know that for most patents in the field of information and communications technology there isn't just one prior art reference. Typically there are several that come very close, and sometimes ten or more. Multiple petitions challenging a patent are absolutely legitimate and positive as long as they aren't merely duplicative of each other in terms of the invalidity contentions they are based on.
The Computer & Communications Industry Association (CCIA) wrote an open letter last month that sharply disagrees with the senators. I'm concerned that the senators may even have coordinated the letter with Director Iancu beforehand so as to give him an excuse for something that he, the most aggressive and radical enemy the PTAB ever faced in such an influential position, would presumably like to do unless there is so much backlash from industry that he'll refrain from it.
Those of us promoting a balanced patent system must keep a close eye on what's going on at the USPTO under Director Iancu. I anticipate more posts on the USPTO, and especially on inter partes reviews, going forward.
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