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!”