EDITORIAL NOTE: What follows are the remarks as prepared for delivery by USPTO Director Andrei Iancu at the Eastern District of Texas Bar Association Inaugural Texas Dinner on October 18, 2018. During his speech, one of his best to date, Iancu discusses how the patent system is currently suppressing risk taking, and how in his opinion the patent troll narrative is simply Orwellian doublespeak. Director Iancu’s speech is reproduced below in its entirety.
“Remarkably, in what I believe amounts to Orwellian ‘doublespeak,’ those who’ve been advancing the patent troll narrative argue that they do so because they are actually pro-innovation. That by their highlighting, relentlessly, the dangers in the patent system, they actually encourage innovation. Right!”
I’d like to thank the Eastern District of Texas Bar Association for inviting me to speak with all of you tonight. It’s such an honor for me to be here. Over the years, I had many cases—and so many great memories—in this district, in its courts, in front of its judges, and alongside (and adverse to) its local lawyers.
And it is especially great to be here in the heart of “Cowboy Country,” in this amazing venue. Having gone to UCLA as an undergrad in the 1980s, at a time when we were led by Troy Aikman, the Dallas Cowboys have a special place in my heart. Us Bruins will always take pride in getting him ready for his career with the Cowboys!
But frankly, no matter what your favorite team is, I suspect it would be very hard to tour this magnificent stadium, as many of us did earlier, and not leave tonight a fan. Just look at where we are sitting right now. How many people can say that they had dinner right here, in this world-class, state-of-the-art-facility that serves as a venue for many of our nation’s largest sports and entertainment events?
This is a real-life fairy tale.
But tonight, I’d like to tell you another fairy tale. A darker tale! And because this is such a fun venue, and because it is a bit late in the evening, we will try something slightly different—yet critically important to our patent system.
You all know this tale:
Once upon a time, in a land far, far away… There was a lovely little girl. She lived in a peaceful village at the edge of a scary forest. Everyone loved the little girl, and she was especially close to her grandmother.
Her grandmother made her a red cape, and, as you all know, the little girl loved it and wore it so much that she became known as “Little Red Riding Hood.”
One day, Little Red Riding Hood decided to go visit Grandma. But Grandma did not live in the peaceful village. Instead, she lived in a small cottage in the scary woods. So, as Little Red Riding Hood set on her way, her mother cautioned: “Go straight to Grandma’s house. Don’t dawdle along the way, and—whatever you do—do NOT go off the path! The woods are dangerous.”
But after entering the woods and noticing some flowers along the way, Little Red Riding Hood made a big mistake in forgetting her mother’s admonition. She left the path and picked a few flowers, watched butterflies, listened to the frogs croaking and then picked a few more.
And then she encounters a stranger. At this point, Little Red Riding Hood makes her second big mistake: she begins to speak with the stranger, who just happens to be a Big Bad Wolf.
Then she makes a third big mistake: she reveals Grandma’s address. So the Big Bad Wolf runs ahead of her, goes to Grandma’s house, pretends to be a friend, gets into the house, then eats Grandma.
When the little girl arrives at Grandma’s house, she sees the wolf but thinks it’s Grandma because he disguised himself.
And the little girl says—as you all know—“Why Grandma, what big eyes you have!”
“All the better to see you with, my dear!”
And, “What big ears…”
And, “Why Grandma, what big teeth you have!”
“All the better to eat you with, my dear!”
Then, the Big Bad Wolf proceeds to eat Little Red Riding Hood.
It’s a tragic, horrible story.
In medieval times, before the Brothers Grimm retold it with a happy ending, the story ended there, with both Little Red Riding Hood and Grandma eaten. A complete tragedy, and absolute disaster.
Still, to this day, this remains a very popular fairy tale. But what’s the real meaning of it?
There are actually many meanings that people banter about, but the crux of the story, in my view, is that little children growing up in medieval villages must stay in the village. Do not venture into the woods, and if you do, for Heaven’s sake, don’t take any risks. Don’t speak with strangers. And most importantly, don’t wander off the path! Keep your head down, and stay in your lane! Because if you don’t, all disaster breaks loose and you might get devoured by the Big Bad Wolf.
Now, this may have been an appropriate lesson for Europeans in the Middle Ages, but what’s surprising is to witness this type of message being delivered nowadays, in 21st century America, with respect to innovation and intellectual property protection.
As you all know, for many years now the dialogue surrounding IP has devolved into a discussion about—shall we say—scary monsters? You know, the green creatures that dwell under bridges or lurk in the forests and are poised to terrorize anyone who dares take the risk of venturing out into the innovation ecosystem.
The goal of this narrative is the same as that of stories such as Little Red Riding Hood: don’t leave the village. Don’t take risks. Stay in your lane! Because if you do take risks, if you do have the gall to get out of your lane, you may encounter big bad wolves or other scary monsters. And horror of horrors, you may encounter “patent trolls!”
What an odd message to deliver in the 21st century. What an odd message to deliver in America in particular, a country of risk-takers, entrepreneurs and inventors. An odd message indeed, especially given the incredible success of the American patent system over time.
Think about it. This past June, the USPTO issued patent number 10 million and celebrated that milestone with a signing ceremony at the White House with President Trump. This is only the second patent signed by a sitting president since John Quincy Adams, and represents the importance IP has achieved in today’s economy.
This is 10 million patents in just over 200 years. And this is not just a number. Though sure enough, 10 million is a nice, round number. But more importantly, 10 million is the accumulation of creativity of such magnitude and concentration the likes of which humanity has never seen.
Human civilization has existed for thousands and thousands of years. Greeks, Romans, Hebrews, Ancient Chinese, Egyptians, Aztecs, and countless other societies across the world and across time. And despite millennia of human existence, just a couple of hundred years ago, we would have arrived here by horse and buggy, just like they were doing thousands of years ago. We would be having this dinner by candlelight or moonlight, just like they were doing thousands of years ago. And anesthesia for surgery was still just a shot of whiskey. Or two.
Despite millennia of human existence, the state of the human condition when our country was founded was about the same as it was in ancient Rome. The tremendous progress we take for granted today has mostly been made over the past 200 years, and mostly with American innovation.
Lots of factors go into that success, obviously, and we cannot trivialize any of them. But I believe that the uniquely important and history-defining factor is the United States Constitution, and the inclusion in it of IP rights.
In fact, in the body of the Constitution itself (without the Amendments), the word “right” appears only once. It is in Article 1, Section 8, Clause 8, granting the Congress power “to promote the Progress of Science and Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
The only time the word “right” appears was to secure intellectual property rights. It was that important to our founders. And they were right.
Backed by our patent system came unprecedented development. For the American patent system democratized invention. Anyone could participate. No need to be friends with the Crown. No need to be wealthy or to have a patron or, frankly, any funds at all. Our founders purposefully ensured that our system would be open to all.
Anyone could invent in America and everyone was incentivized by our constitutional patent system to do so. And incentivized they were. And invent they did. And the results have been remarkable.
Our constitutional patent system has given rise to a spark of ingenuity and development the magnitude of which humanity has never before known. Electricity and the telephone; the automobile and the airplane; recombinant DNA and DNA synthesis; the microprocessor, genetics and cancer treatments. And so much more. And all of it done with American patents.
Edison, Bell, and the Wright Brothers; Boyer and Cohen and Caruthers; Ted Hoff and Frances Arnold. These are inventors whose work we should celebrate. And theirs are the stories we should tell. Not scary monster stories.
Repeatedly telling “patent troll” stories is indeed odd, especially when they’re being told to the people who have been responsible for the greatest advances in human history.
The narrative must change. And, at least as far as the USPTO is concerned, it has now changed.
We are now focusing on the brilliance of inventors, the excitement of invention, and the incredible benefits they bring to all Americans and to the world.
Take, for example, Bob Metcalfe, currently a professor of innovation and Murchison Fellow of Free Enterprise at the University of Texas in Austin.
By the age of 10, Bob knew he wanted to become an electrical engineer and attend MIT. He did. And followed that up with a master’s and Ph.D. from Harvard. In 1972, Bob began working at Xerox’s Palo Alto Research Center, where he met electrical and radio engineer D.R. Boggs.
With Boggs, Bob invented what came to be known as the Ethernet, the local area networking (LAN) technology that turns PCs into communication tools by linking them together. Today, more than a billion Ethernet-based devices are shipped every year. And then, in 1979, at the height of his career, Bob took a huge risk and left the comfort of Xerox and founded 3Com Corporation.
An inventor on many U.S. patents, Bob was awarded the National Medal of Technology by President George W. Bush in 2003 for his leadership in the invention, standardization, and commercialization of Ethernet. And in 2007, he was inducted into the National Inventors Hall of Fame.
Bob told us recently: “Rapid execution and patents are probably the two major defense mechanisms against the vicious status quo, which is out to crush you.”
Innovation and IP protection have indeed always been America’s mechanisms for progress in the face of the “vicious status quo.”
Take as another example Susann Keohane, IBM Global Research Leader for the Aging Initiative, another Texas-based inventor. Her inventions combine cognitive technology, the Internet of Things, and other emerging technologies to improve quality of life for people with disabilities and the aging population.
Susann is an IBM Master Inventor who holds 114 U.S. patents. And, importantly, she told me she is working on more!
This is the American patent system. These are the heroes who have taken risks to make something new and to change the world. Theirs are the stories that must drive our patent policies.
Because in this country, we want people to take risks. Like Susann and Bob, we want folks to leave their comfort zones and step into the forests of discovery and innovation. We want folks to step out of their lanes and try big, bold, new things. And scaring them with ugly monster stories does precisely the opposite; it drives towards policies that inhibit innovation.
Remarkably, in what I believe amounts to Orwellian “doublespeak,” those who’ve been advancing the patent troll narrative argue that they do so because they are actually pro-innovation. That by their highlighting, relentlessly, the dangers in the patent system, they actually encourage innovation. Right!
After hearing about the Big Bad Wolf eating Little Red Riding Hood and her Grandma, would kids be more eager to go into the woods and more eager to take risks? Come on! What encourages more innovation? Susann Keohane, Bob Metcalfe, Thomas Edison, the Wright Brothers, Frances Arnold—or scary monster stories?
What encourages more folks to take risks and become entrepreneurs and inventors? Is it stories highlighting the success of risk-taking and the personal and public gratification of invention, or is it stories highlighting green monsters under bridges and the faults in the patent system?
Look, people are free to express any point of view, and they can certainly advocate for weakening our patent system. But they should be up front about it. Those who spend their time and money relentlessly preaching the dangers of monsters lurking under the innovation ecosystem, and who work exclusively to identify only faults in the system, are unconvincing when they argue that they are doing so for purposes of increasing innovation.
Certainly, innovation and entrepreneurship are risky. And certainly every system has faults, and we must be vigilant about identifying and eliminating abuses when they arise. I am personally committed to doing so. But for any system to be successful, it cannot focus exclusively on its faults. Successful systems must focus on their goals, successes, and aspirations.
Focusing exclusively on selected, known problems has damaging consequences.
Focusing exclusively on killing the wolf, for example, can also kill Little Red Riding Hood! If all we care about is getting rid of the wolf, we can drop a bomb on the whole forest, and the wolf is gone. But so, unfortunately, is Little Red Riding Hood. And Grandma too!
Similarly, in our zeal to eliminate “trolls” and “the bad patents” they allegedly use to terrorize society, we have over-corrected and risk throwing out the baby with the bathwater. This must now end, and we must restore balance to our system.
So instead of focusing exclusively on policies that highlight dangers in the system, we should focus on policies that encourage inventors and entrepreneurs. And when we do encounter abuses, we should address them promptly and with narrowly tailored solutions.
So, tonight, I have a message for these storytellers: scaring our inventors and our entrepreneurs is harmful. And scaring our government officials drives towards over-broad policies that, on balance, inhibit innovation.
Born of our Constitution and steeped in our glorious history, the American patent system is a crown jewel; a gold standard. Stop attacking it.
Instead, let’s work together to find narrowly tailored measures to eliminate only the faults in the system, while promoting the vast amounts of amazing innovation America is capable of.
Let’s work together towards policies that help our inventors and entrepreneurs navigate our system to maximize their potential—to invest, to invent, to start new companies, to grow old ones, to create jobs, and to change the world. These are our heroes and they are the ones we should be telling our kids about.
I also have some messages for all of you here tonight: stay engaged. Pay careful attention to the impact any one policy has on the entire innovation ecosystem. Advocate for policies that advance the great work of American inventors and American innovation. Challenge harmful rhetoric. And most importantly, seek balance, consistency, predictability, and reliability in our IP systems.
Together, we can change the dialogue. And together, we can ensure that our innovation ecosystem remains the best in the world. Because that is what our founders created, and that is what has been the constant engine behind America’s prominence to date.
And when you hear some people argue that they tell scary monster stories because they are “pro-innovation,” you may want to look at them quizzically and say, “Why grandma, what big eyes you have!”
Join the Discussion
49 comments so far.
Night WriterOctober 26, 2018 06:33 am
Litig8or is an artifact of what the Scotus has created. We now have these people running about yapping their little heads off about psychotic realities that are based on simply what a justice has proclaimed as natural law.
A person that seeks power and feels the power of flattering the justices off by propagating their manufactured realities.
Boy (or girl) keep telling the justices that the Sun revolves around the Earth. I am sure you are making money doing so and I am sure you care about little else than what makes you powerful and rich. The lack of integrity drips from every one of your posts.
Night WriterOctober 26, 2018 06:29 am
You should add not worked in the DOJ. The DOJ has created some of the most anti-patent judicial activists in history. Benson came from the DOJ. People like Taranto who are very smart, but unethical and immoral in that he cares nothing of the application of the law, but only of how he can bend the law to his ends.
The DOJ is without question the biggest breeder of judicial activists that want to burn down the patent system.
concernedOctober 25, 2018 05:26 am
As a first time inventor, the current state of affairs with the patent system was a complete shock. I had no idea how slanted the rules are against an inventor. I appreciate your efforts and the efforts of IP Watchdog.
I would have no problem with a jury of my peers deciding my invention’s fate. None of my friends can even begin to understand how I was rejected on a patent. We are not attorneys, we do understand right from wrong. And how a solution that solves a problem professionals and experts could not solve for 62 years (documented) was rejected is beyond our comprehension.
I think a potential infringer or entity that steals my unprotected idea (in appeal) would be afraid of any jury looking at the evidence and trying to make sense of how could the patent system could allow this situation to happen. It is not only un-American, it is flat out wrong morally: Thou shall not steal (#8).
AnonOctober 24, 2018 06:57 pm
“My credentials are not at all relevant”
I agree. See my previous explications (and defenses of) anonymous and pseudonymous posting (in contrast to the choice of using one’s actual name and any type of “borrowed” authority therefrom. If someone wants to have their identity associated with the “black and white” of their post, that is their decision (and does not — in and of itself — increase or decrease the validity of what IS in “black and white).
What matters is the content on the page.
staffOctober 24, 2018 06:19 pm
‘Do not venture into the woods’
But that is what the prior Congress, White House, PTO and some courts did by talking with and taking the counsel of large multinational infringers (wolves) and how we ended up where we are now -in a patent system where for all but few inventors it is too hard, expensive and slow for us to get, keep and enforce our patents. That is why our large multinational competitors now easily rob and crush us. Without a patent system that secures our property rights we simply have no realistic expectation we will ever be able to commercialize our inventions.
The Director makes excellent points in his address. True, at the founding of our patent system little had changed in the course of human history. Our prime means of transportation, housing, medicine, and overall the way we lived had undergone little change since the beginning of recorded history and often advances were temporary as the discoveries were taken by their inventors to their graves in secret. President Jefferson remarked about the need for a patent system by saying that without it we would be forced to ‘live like savages’.
The changes since the creation of the American patent system have been astounding. But that rate of advance is not sustainable and we argue it has in fact stalled. The reason is simple. Based on our earlier study small entity issued patents have collapsed to only about 10% of their historical shares. Without us pushing them our large competitors have no reason to invest in technological advances. They are happy to sell the dusty models of yesteryear so long as the public has no other alternative. We largely can no longer get patents and when we do we can’t keep or enforce them. When we have to fight at any stage we go out of business. In the end, we end up working for our large competitors -for free, because they can steal our inventions with impunity knowing we have scant chance of ever stopping them. This is justice?
We have great hopes for Director Iancu. What a stark change in message from prior recent Directors. One we warmly welcome.
Now that Director Iancu is hiring a new Chief Judge for PTAB we believe this is an important time to set the tone for the direction of the Board. When the America Invents Act was passed into law, the drafters and promoters of the bill stated the IPR component of it would be a faster and cheaper alternative to settling patent disputes than through the courts with juries: in short, they would be better. But administrative reviews can only be better if all other factors are no worse -such as if inventors are secured the same rights they enjoy in court. Considering that in court we have access to trial by jury with Article 3 Judges and in an administrative review there is no such access, already inventors have lost crucial rights. Therefore, clearly administrative reviews without our consent are not and cannot be better for inventors than to take our patent disputes to court. Nevertheless, here we are until such time as the question about administrative reviews is more finally settled such as with the bill we are now drafting with the help and direction of our friends in Congress.
Meanwhile, we believe that in order to at least better safeguard our remaining rights at PTAB that it is crucial that the next Chief Judge of PTAB have substantial experience in the courts either as counsel for inventors and small business clients, or as a Judge with substantial experience with patent cases. Only then do we believe our remaining rights will be protected from further encroachment until a final solution is obtained.
Further, we believe the next PTAB Chief Judge would ideally also:
• Be a current member of the USPTO patent bar.
• Have 3+ years of work experience as a scientist, engineer, or programmer.
• Have Post-secondary course work in Computer Science, or work experience in software development so that we have a person who doesn’t trivialize the importance of software. We will materially benefit from someone who has personal first-hand experience in software to understand its inventiveness, value and the toil involved in creating it. We live in a world in which software provides a large of amount of added value and economic value, and reducing patents on software-enabled processes and apparatus gives America’s competitors a huge opportunity to steal some of our most valuable property from its inventors and companies.
Exclude anyone who has:
• been sanctioned by a trial judge
• represented a Petitioner in an IPR
• routinely represented entities in court that have been found to infringe patents
• worked in the Solicitors Office of the USPTO
• worked in any supervisory position at the USPTO, or
• worked as an employee of a company that has been a defendant more often than plaintiff in patent suits.
We applaud Director Iancu for his efforts at reversing the direction of the PTO and welcome his help and support in restoring our patent system and in turn offer him ours.
For our position and the changes we advocate (the rest of the truth) to restore the patent system, or to join our effort, please visit us at https://aminventorsforjustice.wordpress.com/category/our-position/
or, contact us at [email protected]
litig8orOctober 24, 2018 11:57 am
My credentials are not at all relevant but anyway the speculation that i am not registered with the USPTO and work at a law firm that is not working in IP law is entirely incorrect. I haven’t commented previously because it’s sort of comical.
ConcernedOctober 24, 2018 11:53 am
I do not want to reveal his private information either. The basis of my info looked to be accurate.
And when I gave him a hint as to his identity on another post, he did not refute the same.
Gene QuinnOctober 24, 2018 10:54 am
I don’t know how you think you know who litig8or is in real life, but based on the information I can see — and without revealing any private information — I will say that it appears to me that your information is incorrect. I’ll leave it to litig8or to say more if desired.
concernedOctober 24, 2018 04:06 am
Litig8or is not registered to represent clients with the USPTO. His law firm does not list patents as a field of practice.
Night WriterOctober 23, 2018 09:27 pm
litig8or >>The strength of a patent is determined in the marketplace (if people pay $$ for a license)
The strength of a patent is determined based on the strength of the legal framework within which it was granted.
litig8or is clearly an anti-patent judicial activists and just like all of them he/she is unethical.
SVIOctober 23, 2018 02:18 pm
Risk taking is really so much of what this is about, and relates patents to the spirit of the Constitution, the country, and its FFs in a unique way. The FAMGA companies and other big boys that have played the role of grandma in this analogy know they can lure the most talented software engineers and pay for the best manufacturing. There is simply no way for an inventor or new startup to compete in those spheres of production. Such was the genius of the US patent system for an inventor to hit above his weight and create value by the sheer act of invention. Not code writing. Not manufacturing. Invention. The enemies of patent protections (who are therefore also enemies of the US Constitution, FFs and spirit of America) want to confound these issues.
AnonOctober 23, 2018 10:59 am
litig8or @ 33,
You clearly do not “get” the point of the article, as your comment of “Having a “strong” patent system is consistent with weeding out weak patents (that should not have issued) quickly and efficiently.” engages directly in the type of thing that is ‘Orwellian doublespeak.’
You show an amazing lack of appreciation for patent fundamentals in wanting a granted right to be so easily nixed.
From a real-world product manufacturing analogy, the answer to a processing problem is not a recall answer (untethered to the processing to begin with).
In that manufacturing scenario, yes, recalls may happen. But the manufacturer would pay for the recall. Given the ‘takeaway’ from the Oil States case, and given that the Public Franchisor is the US Government, any such “recall” would necessarily** involve remuneration of those so affected (the Franchisee).
** If you want to be “fair” about things, and not simply want to be anti-patent.
ConcernedOctober 22, 2018 07:33 pm
My strong patent system review tossed 2 university studies, tossed documentation from every possible end user, tossed official USPTO memos, and tossed documents from the Administrating Agency to arrive at the desired finding of routine, well understood and conventional.
The only thing routine, well understood and conventional is that if your invention uses software, it is dead on arrival.
A strong patent system starts with rule of law, not kindergarten playground rules that are made up as we go and have the strong appearance of impropriety.
While I receive congratulations from colleagues on my accomplishment, I get a kick in the teeth from the USPTO.
What a shame.
TernaryOctober 22, 2018 05:05 pm
A strong patent system is one that adequately protects novel and nonobvious inventions and thus incentivizes an inventor (the risk-taker) to do (more) inventions. Furthermore, a strong patent system would issue strong patents. The strength of a patent is currently determined in the PTAB and the Courts and not in the marketplace, nor by the USPTO Examiners.
Nowadays the patent system lets the value of a patent collapse after its value has been established in an infringement case. Double-speak about: let the marketplace determine the value of a patent. That is absolutely the last thing infringers want as proven by the “delicious pudding.”.
Paul MorinvilleOctober 22, 2018 04:46 pm
litig8or “The strength of a patent is determined in the marketplace (if people pay $$ for a license) or in the courtroom when things are disputed.”
Sorry, bud, you don’t understand much. The strength of a patent can only be determined in litigation. Values derived from litigation are used to set the value of other similar pre-litigation patents.
Since a patent is either valid or invalid, the first step of any valuation is to determine the risk level of surviving a validity challenge in litigation (PTAB or Article III). To figure that out, one must look at historic validity challenges in similar technology areas. If patents in a particular area of technology (software for example) are easily invalidated, it doesn’t matter if a patent is a “good” or “bad” patent (whatever that means). It only matters that a patent in that technology area will likely be invalidated and therefore has no value. This causes collateral damage to all patents in that technology area. None can be reasonably valued because of the litigation results of related patents.
So “the strength of a patent is” not “determined in the marketplace”. It is only determined “in the courtroom when things are disputed”.
Eric BerendOctober 22, 2018 03:52 pm
Having a genuinely strong patent system starts with investing in and maintaining robust support for original patent examination.
With all the passion and hoopla about the issue, notice that anti-patent zealots such as ‘litig8or’, ‘Tiburon’, the odious “MM” (Malcolm Mooney) and “6” on ‘that other patent blog’, continue to obsessively advocate for the flawed REVIEW process that cancels patents and illicitly destroys the Inventor’s Constitutional *Right* to a secure property “for a limited time”, rather than addressing the core of the so-called ‘patent quality problem’, where any substantive changes can be the most effective.
litig8orOctober 22, 2018 02:19 pm
Having a “strong” patent system is consistent with weeding out weak patents (that should not have issued) quickly and efficiently. The strength of a patent is determined in the marketplace (if people pay $$ for a license) or in the courtroom when things are disputed. A patent is not weak or strong on paper. That means nothing. The proof is in the pudding. And as LL Cool J said, “the pudding is delicious.”
Paul MorinvilleOctober 22, 2018 10:36 am
Curious, “Basically, the idea is if we can’t get rid of the PTAB, then let’s transform it into some where patent owners get a fair shake.”
Just look at what is happening with Iancu and compare that to Michelle Lee. There have been no legislative changes, yet Iancu gets so much done to strengthen patent rights.
That is the very reason that nobody can fix the PTAB. Whatever laws are passed to correct it (like the STRONGER Patent Act would like to do), the PTO Director can change the rules and patents will become weak or strong. This is far too much power to put in the hands of one person.
The PTAB must be eliminated. Congress cannot pass a law for every possible rule that forms the basis of the PTAB.
Every four years, there is a presidential election and with it, a strong likelihood that the PTO director will change. If you are looking at investing your hard earned money in a patent or a startup dependent on patents, you have to know that there is no way to know if the patent right will be strong or weak after the next presidential election.
But it will be very hard to convince Congress to kill the PTAB. If you want to influence the patent system, just give massive money to the campaigns. You will buy the favor of the president and you can decide who becomes the next PTO director. The politicians will never give up that money machine.
CuriousOctober 22, 2018 09:18 am
Basically, the idea is if we can’t get rid of the PTAB, then let’s transform it into some where patent owners get a fair shake. The way forward is to make it as much like a DC as possible.
Some questions. Who is going to do the transforming? Also, if it can be transformed one way, cannot it also be transformed the other way? Who/what is going to keep it from being transformed back to what it is today?
Also, the DC is no great place to be an inventor these days either. The laundry list of Federal Circuit cases affirming 101 invalidity determinations is because there is a whole slew of DCs that are punting their patent dockets down the road.
Finally, regardless of whether the PTAB is fixed, there still lies the problem of enforcement — again dealing with the patent-unfriendly Federal Courts (all levels)
Dan PermanOctober 22, 2018 04:10 am
As long as juries and judges who don’t know anything about patents decide about their fate, no small inventor (and for that matter no average size firm either) can afford to sue for infringement or defend against it. An example is a recent case in a northeastern district court regarding a submarine patent on a molecular biology patent. Neither the judge nor the jury understood the subject matter. The outcome was wrong, and to add insult to injury, the judge decided to overturn all of the jury’s findings, all for the wrong reasons. The only solution is the creation a federal patent court with professional judges that understand patents and also have scientific and/or engineering background!
Night WriterOctober 21, 2018 01:16 pm
I have been saying this for a long, long time. Basically, the idea is if we can’t get rid of the PTAB, then let’s transform it into some where patent owners get a fair shake. The way forward is to make it as much like a DC as possible.
RamyOctober 21, 2018 11:09 am
Bravo, great leadership by director Iancu. corrupt large corporations blinded by greed, have corrupted the Patent system and are destroying inventors lives. These corporations corrupted many at the USPTO and have turned the USPTO into the U.S Patent prostitution office. How can you give inventors patents and then take them away after years of ownership, only because some corrupt corporation makes a request for review.
The system is whorish and must change. We have inventions that can protect our country from another 9/11 attack and are afraid to patent these inventions until the patent system is made great again. This is tragic and congress must get involved to reverse the tragedy that corrupted the patent system.
Eric BerendOctober 21, 2018 09:43 am
@ 22., ‘Night Writer’:
Interesting that you are advocating for another change I had identified (and I’m sure, others well before me):
If there is to be an administrative court – not that I am in any agreement with this notion – then, it should be according to the same standard established throughout the Federal system: that of ALJs with true quasi-judicial qualifications and oversight.
Paul MorinvilleOctober 20, 2018 02:46 pm
Perkins, Yes it is the only time the word “Right” is used, but it is important to note that it is also capitalized. Capitalized words in the Constitution were capitalized for a reason. It has specific meaning and that is it is a Right.
PerkinsOctober 20, 2018 02:26 pm
Director Iancu’s is to be commended for pointing out that “right” only appears in the Constitution Article 1, Section 8, Clause 8, granting the Congress power “to promote the Progress of Science and Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Bravo to Director Iancu for reminding us and defending the USPTO’s purpose, and indeed obligation, to preserve this right.
But, do not forget that the same clause also recognizes that the respective Writings and Discoveries are theirs, that is, the personal, private, property owned by the the Authors and Inventors from the instant they are conceived. The Inventions and Discoveries are not the public’s, not the U.S. Government’s and not the efficient infringers’. Despite what the big, bad wolf and the SOCTUS say, I believe Article 1, Section 8, Clause 8 is a constitutional guarantee, granting payment of another personal, private property, the Patent, to the Inventor in exchange for the transfer of the Inventor’s invention to the public.
I would also go so far as to argue that theft of the inventor’s invention, patented or not, is as much a crime as the theft of any other of the Inventor’s property.
Night WriterOctober 20, 2018 12:57 pm
It would be interesting if people like Mark Lemley would participate in a moderated debate about some of these issues. Frankly—from what I’ve seen–the problem is that Lemley would just make things up and there is no accountability. A debate just doesn’t have meaning if there are not consequences for unethical behavior.
Jason LeeOctober 20, 2018 10:07 am
“Look for the new 101 guidance soon. His comments today at SMU lead me to believe that that he will draw a line on 101 that interprets the mess of Supreme Court decisions (legislation) narrowly and will go to war with the courts over the meaning of it. My bet is that he will force the courts to stabilize their incredibly harmful 101 jurisprudence by doing this.”
If he can fix 101, and help fix EBay and Alice, Patent holders will have a reason to invent again. The Silicon Valley estoppel has slammed the door shut from anyone else joining the party and from getting paid for their inventions. The Silicon Valley Mofia must be controlled and there needs to be a balanced playing field. We do not need big business to thrive, its always been the guy in the basement or the garage that has created the next great new thing. Government brought in Standard Oil when the got too big and Google Apple Amazon FB have gotten way to big and they need to start paying for the IP they have stolen. These companies are worth Trillions of Dollars all on the backs of small IP inventors, it ridiculous, its long over due they start giving back some of that money that they own to Patent Holders. Shut down those loopholes they helped create, educate the SCOTUS on why patents need to be protected and write to your congress person. Its a shame to see IP’s getting bulldozed by the ones that benefited off of a strong patent system. The United states use to be #1 in the world for patents, now they are #12. Change could not come soon enough.
Night WriterOctober 20, 2018 06:09 am
Could not agree more with you.
IMHO, the path forward is to turn the PTAB into a DC. We should advocate for the patent judges to become ALJs as a first step and expand the PTAB as much as possible.
CuriousOctober 19, 2018 11:15 pm
As great as Iancu’s comments are, they will have little real impact so long as the Federal Circuit continues to bless the decimation of patents rights under 35 USC 101. The technology of tomorrow is found in biotechnology and computers yet these is the technology that has been deemed “abstract” by the courts time and time and time and time again.
Getting more patents issued out of the USPTO means nothing if that patents get dashed on the rocks of the Federal Circuit.
As for legislative changes, while we’ll be losing some of the roadblocks to progress (I’m looking at you D. Issa) in Congress, I would be shocked to find bi-partisan support for a bill that returns sanity to the patent system. The big high-tech companies having a lot of money to spend, and those in Congress are addicted to campaign contributions, so I don’t see the narrative changing.
The “troll” bogeyman will continue to haunt the halls of Congress so I doubt anything will get done. I really wish I was wrong, but these are the tea leaves I’m reading.
Pro SayOctober 19, 2018 07:20 pm
From eBay to Alice, the biggest innovation Bad Wolf of all is … SCOTUS.
MPGA! (Make Patents Great Again!)
Night WriterOctober 19, 2018 06:34 pm
I know one thing that Lee was doing. She was trying to propagate the same 101 procedures that were being used in AU 3600’s into the other AUs.
That would have burnt the system down. I am not sure why that stopped, but I remember many conversations with people at the PTO about this and had to deal with some nasty 101 rejections outside the 3600’s. But, for some reason the 101 rejections stopped and the talk of the 3600’s being a template for the other AUs stopped as well.
@18 Paul I agree. I support him 100% too, but I am not too optimistic. I lived through Dudas and despite his best efforts not much happened under him.
I will say that Iancu is a real patent attorney. He has the type of experience that should be required to sit on the CAFC. If we had the CAFC filled with people like him, then many of problems would be gone. I hope he stays active either in the CAFC or in some other capacity to set IP policies in the US for a long time.
Paul MorinvilleOctober 19, 2018 05:53 pm
While Iancu is restricted to the powers of his office, he is getting as much done as he can as fast as possible. If you asked me a year ago if we would be get rid of BRI and would be looking at new guidance on 101, I would have have said no way. But he’s getting things done.
There were 6 inventors at the EDTX Bar conference at a table on the 20 yard line of the ATT field in Dallas where he made this speech. We gave him a standing ovation from our table while the rest of the audience remained seated clapping politely.
I guess you cannot cheer him if you work for huge tech companies. Which means he needs full support from those of us who are not conflicted (bought) by big tech.
Look for the new 101 guidance soon. His comments today at SMU lead me to believe that that he will draw a line on 101 that interprets the mess of Supreme Court decisions (legislation) narrowly and will go to war with the courts over the meaning of it. My bet is that he will force the courts to stabilize their incredibly harmful 101 jurisprudence by doing this.
Iancu has my support – 100%.
Gene QuinnOctober 19, 2018 05:51 pm
I disagree that Michelle Lee did everything she could to burn the system down. I won’t disagree that her speeches and rhetoric was not helpful (except for one or two speeches, particularly her MIT speech). But it was really her inaction that was the problem. She allowed the PTAB to do whatever the PTAB wanted to do. She didn’t use any of her power to bring about reforms of any kind — good or bad. So it isn’t fair to compare Lee with Iancu as you have done.
The next Congress will be telling. He will have at least 2 years to push an agenda. Whether those in the industry stand up and get behind him will matter greatly (in my opinion). He seems to have great latitude under Secretary Ross and President Trump. I think good things are going to happen over the next 2 years, more if President Trump gets reelected.
Night WriterOctober 19, 2018 05:34 pm
We should not get too excited. Remember that Lee did everything she could to burn the system down and didn’t really get all that much done. The director really doesn’t have that much authority. Probably the best thing he could do is get Congress to act. Absent Congressional action, I don’t think too much will change and we might be in for a 180 if Trump loses the election. If Biden is elected, then we might be right back to another Lee and the stacking of the CAFC.
Joe AllenOctober 19, 2018 05:30 pm
U/S Iancu made similar remarks to kick off the Licensing Executives Society meeting on Monday. The audience was electrified to hear him telling it like it is. We’re lucky to have him at the PTO in our hour of need. He’s not only talking the talk but walking the walk. He deserves our strong support.
JimmyOctober 19, 2018 03:49 pm
I believe the scary tale is a little skewed somewhat as it is the Pro Se inventors and the small entrepreneurs who have to be afraid of the big bad wolf. It’s the big bad wolf like Xerox, IBM, Microsoft, Apple, Google, Amazon, etc. that makes walking into the forest a nightmare for inventors.
Once little red riding hood is granted the patent from the USPTO and finds out that the big bad wolf is infringing on the patent, this is the moment that little red riding hood realized that she has stepped in a pile of s**t left behind from the big bad wolf, as there is nothing that she can do. The big bad wolf spends all day and night infringing on patents and there is nothing little red riding hood can do, as she is just a Pro Se inventor. The big bad wolf files IPR numerous of times on poor little red riding hood and before you know it, the patent only true use now is to be used a toilet paper to wipe off the big bad wolf s**t.
Over all, not a bad fairy tale….. Maybe the USPTO needs to look at supporting the Pro Se/entrepreneurs inventors a little more against the big bad wolf. Maybe the USPTO should implement a “shelter” for the Pro Se/entrepreneurs of the world and if a Pro Se/entrepreneur (non corporate) is still the original owner of the granted patent (or original owner but include the transfer of the patent to a holding company controlled by original inventor), then they are excluded from IPR. Or maybe for Pro Se/entrepreneurs inventors are allow to try arbitration first against the big bad wolf to see if something could be worked out.
If the USPTO doesn’t really want to help the Pro Se/entrepreneurs inventors, then maybe there is a deal to be made with the forest trolls who aren’t afraid of the big bad wolf………
Jason LeeOctober 19, 2018 03:16 pm
I feel Nikola Tesla’s pain when he invented the AC and Edison was trying to block him. Silicon Valley elites are doing the same by using the patent system to their benefit by keeping other inventors locked out by paying off and passing bills from restricting small IP holders from getting paid for their inventions and from growing their business like Amazon, Apple and Google did. The USPTO director is doing a good job so far but there is much more that needs to be done to make patents great again.
ConcernedOctober 19, 2018 03:11 pm
The Concerned @6 is not the real concerned.
Please post under a different name. Thank you.
JPMOctober 19, 2018 03:07 pm
Bravo! director Iancu, bravo!
EGOctober 19, 2018 01:54 pm
So Iancu calls (literally and figuratively) the “patent troll” narrative a “fairy tale.” What a difference from the prior Director! And you should see MM’s (aka Malcolm Mooney’s) head “explode” on Patently-O over what Iancu said.
TernaryOctober 19, 2018 01:37 pm
Bravo, Director Iancu. It is time America is reminded of the enormous contributions made by inventors (independent inventors included) under protection of our patent system.
Unfortunately, until further steps are taken, this may remain a “feel good” presentation with little impact.
One of the most Orwellian terms currently in use at the USPTO is “directed to an abstract idea.” The Big Bad Wolf in this is the USPTO itself, which under almost no circumstances is willing to find the technological improvements in applications that are staring Examiners in the face, but remain stubbornly unrecognized by Examiners under systematic internal pressure.
I know of only one case, wherein an Examiner noted that under current rules, claims would be considered being “directed to an abstract idea” but that the claimed invention offered significant improvement over prior art and thus the claimed invention was patent eligible.
One step in the right direction is to instruct Examiners to identify technical improvements that would render claims patent eligible. Berkheimer was a good first step, but more steps are required to restore sanity to the system. You cannot expect independent inventors to take the risk of telling their secrets to the USPTO, only to be utterly demolished. My advice to independent inventors who file only in the USA: do not have your applications published and make sure you mark that box on your ADS and where possible file a copyright registration. For now, our patent system may not be the way to obtain protection for your IP.
David SteinOctober 19, 2018 01:34 pm
> “Remarkably, in what I believe amounts to Orwellian ‘doublespeak,’ those who’ve been advancing the patent troll narrative argue that they do so because they are actually pro-innovation. That by their highlighting, relentlessly, the dangers in the patent system, they actually encourage innovation. Right!”
One of the more surreal aspects of the big picture in the “patent reform” story is the lack of connection between the narrative – patent trolls, and shakedowns, and poor decisions by the PTO – and the “reform” measures that were instituted because of that narrative.
First: The narrative is all about *who* is getting patents – non-practicing entities who have no interest in protecting their own products – and yet, the “reform” is all about *what* is getting patented.
Consider the following companies:
* Aatrix Software
* Ameranth Wireless
* Credit Acceptance Corp.
* Open Text
* Two-Way Media
Every one of these companies is a business with actual products and services and customers. And yet, every one of these companies has had its patents bitten by § 101 – CBM, IPR, and a trip through the federal courts. And they’re hardly the only ones: *every* company that produces software is struggling with the overblown application of Alice by the examining corps.
Second: If proponents actually wanted the USPTO to issue higher-quality patents, they would have advocated for fundamental changes to patent examination – namely: (a) giving examiners more time and better tools to search, and (b) holding examiners to account for making technically correct decisions. On the contrary, instead of a stricter standard, proponents pushed for a looser standard: granting judges, and by extension examiners, subjective license to flush patents at their whim.
The consequence is that obtaining patent protection is more expensive, and patent litigation is *way* more expensive. Some parties are more able to bear the added expense than others. I believe that’s the actual objective – tilting the patent system toward some interests and away from others.
AnonOctober 19, 2018 01:26 pm
As there has been a number of comments on “that other site” recently to the effect that there is no such thing as being “anti-patent,” may this address by Iancu stifle such nonsense.
The only addition that I would make is that there are in fact more than one group of people that are anti-patent, and that there is more than one animating philosophy for being anti-patent.
Quite in fact, there are several.
But I like to point out two main types, in what I call the “Right” and “Left” of attacks. Mind you, this is an imperfect analogy to a purely political “Right” and “Left,” even as my use does overlap some political viewpoints.
On the Left then are those that tend to seek to diminish, denigrate, or despise personal property. This would be the general view of political left of social or commune (communistic) tendencies, wherein personal is viewed as taking from the commune or shared aspects. Like it or not, many of the lemming types in the tech world may fall to this “shared/for the commune” tendency. Also, another large (but certainly not uniform) group that belongs to this philosophical bent are the academics. It really is not a controversial view that the world of academia is NOT a meritocracy, and instead is a system wherein advancement comes from touting the “party line” of those entrenched, and the Left have certainly entrenched themselves in academia.
On the Right (and admittedly, this has less than perfect overlap), we have the Efficient Infringer group, typically larger multi-national Big Corp who may hold the view that while “personal property” may not be “bad” (and certainly not “bad” if it is owned BY the Big Corp), what is bad is ANY property (private personal or public franchise) that is held by anyone else than the Big Corp, and certainly (and directly on point as to the Tr011 myth) that property held by those who may be immune to the tactic of Patent Armageddon. After all, the entire thrust of making the “Patent Tr011” narrative INTO a weapon of business was directly this very type of Big Corp. Make no mistake there – they were not doing that for any “public benefit,” and were doing so solely for their own benefit.
The words here by Iancu — it should be noted by such as “litig8or” and other “naysayers” reflect views long expressed by me and by those of like mind; those, seeking a strong patent system to protect and foster innovation.
ConcernedOctober 19, 2018 12:17 pm
Who is this person Lancu?
Change the laws for the little entrepreneur instead of telling ignorant storytelling.
Push congress to roll back the patent system for entrepreneur’s who have nothing but an idea.
Stop using examples of entrepreneurs who work for the republic and not themselves.
My 2 cents.
Paul MorinvilleOctober 19, 2018 12:07 pm
Iancu got a standing ovation from a table of inventors.
BPOctober 19, 2018 12:03 pm
Thank you Gene! What a fresh contrast to Dir. Lee. I remember listening to the grand farce called “roundtables” where Lee’s agenda was that of her handlers.
@2 valuationguy – right on. The SV collusive oligopoly’s tales as to H1B visas and trolls are unraveling; not so veiled policies for wage control (profit maximization) and market control (profit maximization), regardless of the cost to the public. That their greed destroys democracy comes at no surprise.
concernedOctober 19, 2018 11:51 am
Bravo. This Director seems to good to be true! Yet he is only talking about fairness and a constitutional right, not gaming the system this way or that way. Fairness to all, not just to the people who want to steal our ideas. Double bravo!
Hey Litig8or: Why what big eyes you have!
ValuationguyOctober 19, 2018 11:46 am
Understand that Iancu had a pretty favorable audience here (EDTX) but his sentiment needs to be played out in front of the spineless Congresscritters who signed (and support) the AIA as an instrument to destroy the “impediments” that our Silicon Valley corporate tech oligopoly saw as a result of patents held by others.
Few of those corporations are actually tech innovators…..but they are good product manufacturers and marketers (and rich enough to bribe to money-seeking politicians).
Night WriterOctober 19, 2018 11:18 am
Wow. Seems like a dream that finally someone is saying these things.