The next PTO Director must grasp the fundamental fact that a patent secures a property right

Madison Building at the USPTO Alexandria, VA campus.

Last week, on Friday, July 21, 2017, 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.

The letter goes on to explain:

PTO has shifted from its traditional operative understanding of inventions as property and patents as deeds to that property, carrying with them inherent — as opposed to government-granted — property rights. The PTO today seems to have become confused over the distinctions between “invention” or “discovery” and the in-vogue term “innovation” — a catchall term that includes ephemeral, rapidly obsolete technologies and devices. The costs and consequences of this change at the PTO, in addition to a steady stream of adverse judicial rulings and legislative enactments, are measured in flat U.S. patent filings, investment dollars going abroad, dramatic falloff of patents issued to independent inventors, and our patent system rating falling from number one to number 10 globally.

The letter sets forth a series of characteristics the group believes the next PTO Director should possess. The letter reads:

It is imperative that the next PTO Director possess the following characteristics:

• A thorough understanding of and commitment to restoring timeliness, fairness to inventors and patent owners, certainty regarding patent examination, patent validity, and issued patents, as well as in regard to the bright dividing line between IP exclusivity and antitrust, property understood;
• Unquestionable commitment to buttressing the U.S. patent system, and the PTO in particular, so as to restore its original mission and role in advancing U.S. economic competitiveness and growth;
• A firm understanding of the risks and rewards at stake and borne by small inventors and IP-centered startup companies, early-stage businesses built around a patented invention, and established R&D companies;
• A thorough commitment to promoting and advocating for U.S. competitiveness and the sanctity of intellectual property rights, both domestically and internationally.

Although this letter does not support any particular candidate the Administration might consider, in recent weeks several conservative groups have made a public push for Phil Johnson to be nominated as the next PTO Director. (See here, here and here).

Johnson seems to be among the final few candidates under consideration, with patent litigator Andrei Iancu also believed to be a front-runner.

For more on the topic of the Trump Administration’s selection of the next Director of the USPTO, and what the industry is hoping for in a new Director, please see:


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Join the Discussion

17 comments so far.

  • [Avatar for Samson Corwell]
    Samson Corwell
    August 3, 2017 01:43 am

    Glad to lawyers engaging in political philosophy. Gene Quinn swings and misses

  • [Avatar for Edward Heller]
    Edward Heller
    July 26, 2017 03:17 pm

    It is my understanding that Joe Matal was the greatest proponent there was for IPR. He simply would not listen to people who said there might be a problem.

    I do not know whether Matal has changed his views, but, as if this point in time, he should be considered public enemy number one to the patent system.

  • [Avatar for Tesia Thomas]
    Tesia Thomas
    July 26, 2017 02:16 pm

    @Invention Rights,

    Wow. WTH. That comment is so ignorant.

    Is he trying to say it’s USPTO VS. INVENTOR???
    Because that’s what it sounds like.
    It also implies the agency fights on the side that wants PTAB.
    And that is equally vexing because the reason PTAB exists is that examiners supposedly suck.

    So USPTO is sacrificing examiners for the sake of PTAB.

    USPTO is split. And all those in power favor PTAB.
    I wonder are examiners bound by nondisparagement?
    If my managers were so against my work that it caused them to create a whole new check on my work then I’d be defending myself.

    Oh, wait, examiners still get paid because the efficient infringers and leaders like Joe Matal can’t get rid of them or correct them or else their game falls apart.

    The plot falls apart without the poor examiners. They have no reason to defend themselves. Software Cartel is still filing patents, bringing in revenue for their paychecks.

  • [Avatar for Invention Rights]
    Invention Rights
    July 26, 2017 01:46 pm

    Randall Radar maybe? At least someone who is embarrassed every time one of the patents he signed is held invalid. Contra Michelle Lee and Joe Matal who celebrate the PTAB and its reversals.

    Don’t worry about your jobs. We’re going to win that case. And you heard it here first: It’s going to be a 9-0 decision in the agency’s favor.”

    – Joe Matal remarks on Oil States

    He has no idea what his “agency” is supposed to be doing.

  • [Avatar for Edward Heller]
    Edward Heller
    July 25, 2017 08:53 pm

    I do not suppose there is any credible figure out there in the running for the directorship who can say publicly that he opposes the entire gamut of post-grant procedures from re-examinations to IPRs as fundamentally unconstitutional and inconsistent with the very idea that patents are the property of their owners.

    Is there any person out there like this? Is there any person out there that really understands the problem of post-grant revocations?

  • [Avatar for Eric Berend]
    Eric Berend
    July 25, 2017 12:50 pm

    This was always a classical understanding: that there is a veracity of meaning to the declaration of Article 1, Section 8, Clause 8 of the Constitution of the United States of America. The Clause states: “…by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries…”.

    Anglo-American development of its shared origins of jurisprudence, dictate of our legal and legislative systems, that there cannot or should not be more than “one bite at the apple”, in the prosecution of a valid legal interest or cause of action.

    Somehow, these bastions of legitimacy have become disregarded only and exclusively for individual inventors and non-giant entity patent holders, in U.S. patent law.

  • [Avatar for Tesia Thomas]
    Tesia Thomas
    July 25, 2017 09:03 am

    We should write one.
    Let’s just ask questions.

    Do you know what exclusive means?

    Why don’t ALL patents have to undergo PTAB?

    Isn’t ex post facto legislation generally disallowed?

    Why is the Software Cartel still paying for crappy examination?

  • [Avatar for Brian]
    July 25, 2017 02:40 am

    Can someone write an short oil state amicus brief

    US Constitution says : “securing — exclusive rights — to the respective inventors”

    USPTO cannot interpreted it as granting — public right — a position taken by USPTO in the Oil State / MCM response !

    Excusive right => IS NOT Equal => Public right !!!

    For god sake : Synonym of *Exclusive* is Private !

  • [Avatar for Brian]
    July 25, 2017 02:36 am

    Can someone write an short oil state amicus brief

    US Constitution says : “securing — exclusive rights — to the respective inventors”

    USPTO cannot interpreted it as granting — public right — a position taken by USPTO in the Oil State / MCM response !

    Excusive right ? Public right !!!

  • [Avatar for Tesia Thomas]
    Tesia Thomas
    July 24, 2017 09:37 pm

    They paid the issuance fees for all of these poorly examined US patents.

    I checked. The examiners aren’t the Same.

    I wonder if they give employees bonuses for poor performance reviews.

    Someone just needs to publicly ask how the Software Cartel knows its patents are of high quality when they get poor examination just like the rest of us.

    Maybe they’ll start blaming attorneys. “We have better attorneys”

    Or inventors. “Our enployees are top notch.”

    But it all still goes back to examination.
    Every patent not written by Software Cartel should not be issued. Every invention not crafted by Software Cartel employees should not be issued.
    And it’s all up to the supposedly incompetent examiner to not allow issuance.

  • [Avatar for Tesia Thomas]
    Tesia Thomas
    July 24, 2017 08:50 pm

    If they really think USPTO sucked then they’d be protesting.

    Examination hasn’t improved since AIA. We just now have PTAB for after examination.

    It’s apparent that one who suggests PTAB as a solution to poor examination yet undergoes ( and pays for) poor examination and *not* PTAB is either crazy or vile.

  • [Avatar for Tesia Thomas]
    Tesia Thomas
    July 24, 2017 08:43 pm

    Why are they even still patenting stuff if the patent examiners suck?

    They’re paying for poor examination which is something they claim to be against.

    Maybe someone should remind the Software Cartel that filing fees pay examiner salaries.
    Hence, they’re encouraging inadequacy by continuing to support the supposedly incompetent.

    Why would you pay for something that you don’t believe in?

    They’re morally bankrupt one way or the other.

  • [Avatar for Tesia Thomas]
    Tesia Thomas
    July 24, 2017 08:37 pm

    The hypocrisy is maddening.

  • [Avatar for Tesia Thomas]
    Tesia Thomas
    July 24, 2017 08:34 pm

    “Fairness to patent owners”

    As far as I know, HTIA/Evil Eight/Software Cartel get the same examiners as we small companies and inventors.

    If it’s really the examination and the examiners who are of poor quality then they should be IPR-ing their own patents and each other for the sake of quality.

    How do they know they have adequate patents when they file US patents the same as anyone?
    If PTAB is the great quality examination then they need to go through it. All patents do.

    The patents that undergo poor USPTO examination and never get to PTAB are of poor quality.
    By definition of ‘poor USPTO examination’ then they must be unless Google et all have special USPTO examiners.

    So maybe what we really have to do is get the same exact USPTO examiners as the Software Cartel.

  • [Avatar for Anon]
    July 24, 2017 08:01 pm

    Maybe (just maybe) the Court will get that aspect of property – as in personal property no less – right, first.

  • [Avatar for angry dude]
    angry dude
    July 24, 2017 06:37 pm

    This all good… BUT what are they going to do with EBay ?????

  • [Avatar for step back]
    step back
    July 24, 2017 03:46 pm

    Glad you are finally using the language of the US Constitution: “securing exclusive rights to the respective inventors”

    What the courts and the PTAB death squads have been doing is de-securing … an act which is contrary to what the Constitution empowers.

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