“Governing is not an academic exercise, particularly in the area that matters most to us. Matters of patent and antitrust law and policy relate to business, which requires more expertise and consultation from those in the real world.”
It is difficult to talk about political issues in the current environment in the United States, but looming for the patent and innovation community is a potential disaster.
While it will undoubtedly upset many, the truth is that there is currently no official President-Elect and there won’t be until the Electoral College votes in the middle of December. In no fewer than six swing states, the vote was so close that President Trump and his lawyers have launched a series of lawsuits that have already made their way to the United States Supreme Court. Much more litigation relating to the election can be expected and proof will be necessary to back up the allegations of the Trump campaign if anything major news outlets are reporting will be changed. In the meantime, it should be fairly uncontroversial to say that President Trump has an uphill battle. It is also absolutely factual to say that Vice President Biden is proceeding as if he is President-Elect.
A Loss for IP
Biden proceeding as President-Elect is perfectly fine and normal. It is what both George W. Bush and Al Gore did in 2000 so they would be able to take office prepared regardless of the outcome of election-related litigation. In fact, it would seem irresponsible for Biden not to be making preparations given that as of now he is ahead in enough states to win in the Electoral College and there is only a short period of time for such a large transition.
While I know that many patent and innovation proponents did not vote for President Trump, elections have consequences. A byproduct of President Trump losing, is the loss of the pro-patent and unapologetically pro-patent system agenda ushered in by U.S. Patent and Trademark Office (USPTO) Director Andrei Iancu. It also means losing the pro-patent agenda – the New Madison Approach – brought to bear at the United States Department of Justice Antitrust Division by Assistant Attorney General Makan Delrahim.
Delrahim has already announced that he will not serve in a second Trump Administration, even if there is one, and speculation inside the beltway has been for some time that Iancu was likely to return to the West Coast at the end of the first Trump term. Although there will be some disagreement, there is growing concern that the groundwork laid by each man will be erased by a Biden Administration, which would be for the benefit of technology implementers – who are sometimes referred to as efficient infringers because of their cavalier attitude toward the patent rights of others.
A review of the announced members of the Biden Transition Team only bolsters these concerns. It appears as if the only person who will advise a President-Elect Biden regarding the Department of Commerce who has any knowledge of patents is Colleen Chien, who served in the Obama Administration in the Office of Science and Technology Policy during Obama’s second term. Chien, who, according to her LinkedIn page, “helped formulate White House policy on innovation and intellectual property with a focus on patents,” advised President Obama during a period that saw former Google Executive Michelle Lee chosen as Director of the USPTO. Not surprisingly, the policy positions of the USPTO during Lee’s tenure as Director often favored Silicon Valley implementers.
Chien’s views on patents are academic, not grounded in the real world, and her default is to be in favor of Silicon Valley implementers who successfully convinced Congress and the Obama Administration to significantly tilt U.S. patent laws away from innovators and toward infringers. Chien is also on record as opposing the STRONGER Patents Act authored and introduced by Biden confidante and adviser Senator Christopher Coons (D-DE), which would bring important pro-innovator reforms to the Patent Trial and Appeal Board (PTAB) of the USPTO and otherwise shift U.S. patent laws toward a fairer equilibrium point. Chien also penned a Wall Street Journal article in 2015 telling companies that the best way to handle claims of patent infringement is to simply ignore them. Chien’s presence on a Biden Transition Team should really scare patent owners and innovators.
A review of individuals tapped to give a President-Elect Biden advice on the Department of Justice does not appear to include anyone that has any knowledge of antitrust law or policy. Even a casual review of the list also shows a great many academics. While this is not to suggest that academics should not be allowed to serve, governing is not an academic exercise, particularly in the area that matters most to us. Matters of patent and antitrust law and policy relate to business, which requires more expertise and consultation from those in the real world.
Back to the Future?
Whether you are for or against Biden it is perfectly fair to recognize that the social media giants and Google did much to support the Democratic ticket during this most recent election, not just financially, but very publicly suppressing news stories (for whatever reason) and removing conservative media from search results. It would seem given how close the election will wind up being in the few key swing states that mattered, Biden owes quite a lot to the FAANGs of Silicon Valley.
Will this mean the next USPTO Director will again come from Google or Facebook or Amazon, as was the case during Obama’s second term? Will the antitrust lawsuit just filed against Google continue, or will the Antitrust Division of the DOJ step in? Will the Antitrust Division of the DOJ withdraw from the 2019 joint policy statement entered into with the USPTO and NIST, which recognized that injunctions can be appropriate even when dealing with standard essential patents?
Given the support the Biden-Harris ticket received from Silicon Valley and the makeup of the Biden Transition Team, legitimate fears are percolating about whether a first Biden term might look an awful lot like a third Obama term insofar as patents and innovation policy is concerned – even among some Democrats who voted for Biden.
Join the Discussion
45 comments so far.
GeorgeJanuary 9, 2021 07:41 pm
Our patent system ‘mess’ is not the fault of any one President, Jason. It’s the fault of Congress and the ‘fat-cats’ they listen too (as always)! They’re certainly NOT going to endorse a more ‘socialist’ patent system that really protects all inventors, regardless of class or income status!
Besides, most members of Congress don’t know anything about science & technology, or what motivates it, much less about patents! Most are just trained in law (and not patent law) and many are science deniers too! How can THEY come up with good IP laws for the country??? We need many more scientists, technologists and medical doctors in Congress!
GeorgeJanuary 9, 2021 06:30 pm
Unfortunately, have to agree Jason! Has little to do with Biden though (he doesn’t know anything about IP). It’s Congress’ fault that our patent laws are so bad now!!! They are all ‘owned’ by the big corporations and especially pharma!
Jason LeeJanuary 9, 2021 01:31 pm
New inventors are going to Germany and China to file for their patents. America has become the old China and where China is becoming the New America, with new laws that protect small patent holder. There is 0% confidence Biden will improve patent protection. The AIA Act. Alice/EBay-PTAB backed by Big Tech have killed America.
An ObserverNovember 23, 2020 02:16 pm
Nice piece, Gene.
I have found that it is hardly unusual for people to notice that the one area in which their preferred candidate, party, or ideology is wrong just happens to be the one about which they are best informed.
It’s a curious coincidence.
BennyNovember 19, 2020 12:24 am
I have projected who the winner is. Write to me on 20th January to call me a fool. A fool for being able to make an accurate prediction based on available data.
Disclaimer – I am not a US citizen, not entitled to vote in your election.
GeorgeNovember 18, 2020 07:11 pm
Can’t be a very good inventor if you can’t ‘predict’, with reasonably high accuracy, how your invention will work, or if it can be commercially successful!!! That was the FIRST THING Edison learned (the hard way)!
So, I predict with 99.99% confidence that Biden will be our next President and I (and a majority of the American people) KNOW that Trump was a fascist PIG, that only cared about himself – not the American people and certainly not American inventors (because he wasn’t one and didn’t even understand science)! At least Jimmy Carter DID understand and appreciate science & he was a Democrat (if you forgot).
Biden also ‘believes in science’ and in supporting science with money!!! That’s a start at least! Hopefully he will appoint good advisors when it comes to matters involving IP (and not just yes-men/women) as well as the right of ALL Americans to be able to obtain IP rights for their creative work (if merited). But, only time will tell, I guess. I’m at least somewhat hopeful because the AIA is really unpopular except among the very largest companies & monopolies. We also have China’s ‘innovation machine’ to worry about now! We didn’t a decade ago.
AnonNovember 18, 2020 06:07 pm
The words not being said — but are clearly intended — are: fait accompli.
PAUL V MORINVILLENovember 18, 2020 01:28 pm
Even as I sit in the Las Vegas Airport as I type this, I do not know, or pretend to know, which way it will end. I have a preferred candidate, but anyone declaring victory at this point is a fool. Anyone projecting the winner is also a fool.
BennyNovember 18, 2020 12:17 pm
True in the technical sense, but I would expect you to have figured out with a very high degree of probability who the winner is.
Mr 259November 18, 2020 09:26 am
@IamI made reference to intelligence.
PAUL V MORINVILLENovember 17, 2020 05:37 pm
This is not about conspiracies. It is about legal process. Until states totalling 270 electoral votes certify, there is no winner. Pertty simple.
IamINovember 17, 2020 04:07 pm
Oh, come on Paul. You can’t possibly believe that anyone other than Joseph Biden is going to be the next POTUS. It’s amazing to see so many supposedly intelligent individuals fall headlong into so many wild conspiracy theories about the 2020 election.
ipguyNovember 17, 2020 02:47 pm
Trump lost. Get over it.
A Patent Examiner may not, “resort to speculation, unfounded assumptions or hindsight reconstruction to supply deficiencies in its factual basis.” In re Warner, 379 F.2d 1011, 1017 (CCPA 1967), cert.denied, 389 U.S. 1057 (1968). The courts in several states have largely rejected Trump’s legal challenges for similar reasons. Republican Secretaries of State have been attacked as being “so-called Republicans” because they have stood by the integrity of the elections and ballot counting they oversaw.
Whether you’re a Republican, a Democrat, an Independent, an Antidisestablishmentarian, a Nattering Nabob of Negativism, or whatever you choose to call your political beliefs, it’s time to move on, folks.
It’s time to pull together as Americans and move on.
And if you disagree with me, you’re a treasonous, America-hating slimeball who mourned for Osama Bin Laden when you heard he had been killed by our heroic Navy SEALS.
PAUL V MORINVILLENovember 17, 2020 01:28 pm
Benny, we will know when it is certified. Who will be certified is not clear. My guess is as good as anyone’s.
BennyNovember 17, 2020 12:09 pm
Based on the available information, would you care to make an educated guess as to the identity of the president elect?
There are two kinds of people – those who can infer conclusions from incomplete data.
Night WriterNovember 17, 2020 10:53 am
I don’t think that IP has or should have an party. The most pro patent president in my life time is certainly Carter.
And, from what I’ve seen, what is going on is that the Ds are helping SV get whatever they want and the Rs are pushing back in anti-trust suits and strengthening patents.
Obama is a joke. He just did whatever the “experts” told him to do and smiled. Trump is a egotistical nightmare but at the same time he does understand some of the basics of business and understood that Obama was a clown that let other countries and corporations take advantage of the USA.
Paul MorinvilleNovember 17, 2020 10:40 am
Unfortunately, no states have certified their votes yet. Once enough do to get Biden over the 270 mark, we will have a president-elect. But there is none right now.
IamINovember 17, 2020 08:00 am
Benny, there is a lot of irony in Gene calling someone a liberal political hack in the comments after writing what I quoted. But you’re right, I really didn’t need to ask.
Robert AnciloNovember 16, 2020 03:08 pm
Absolutely disgusting. There’s no official President-Elect? The vote was so close? Removing conservative media from search results? It’s nice to see you finally come out of your fascist closet.
BennyNovember 16, 2020 02:07 pm
Obviously not. Do you need to ask?
IamINovember 16, 2020 01:26 pm
“While it will undoubtedly upset many, the truth is that there is currently no official President-Elect and there won’t be until the Electoral College votes in the middle of December. In no fewer than six swing states, the vote was so close that President Trump and his lawyers have launched a series of lawsuits that have already made their way to the United States Supreme Court.”
Wow. Was any basic research performed before writing this statement?
ThanosNovember 16, 2020 09:30 am
Perfectly balanced, as all things should be.
Mr 259November 15, 2020 03:30 pm
@11, the only patriot in this stream. https://www.tillis.senate.gov/2019/5/sens-tillis-and-coons-and-reps-collins-johnson-and-stivers-release-draft-bill-text-to-reform-section-101-of-the-patent-act
So, Biden will not listen or hear Coons, who has been a close advisor and currently sits in Biden’s old senate seat? What you should be hoping for is that Coons is not offered any cabinet position. In the senate he can work to push this Tillis-Coons amendment.
Hopefully Iancu will last through at least the first two years of the new Biden administration allowing the Tillis/Coons amendment to work with a pro inventor director.
Night WriterNovember 15, 2020 09:02 am
I hope people realize how toxic trade secrets are. I was under a trade secret clause to my contract when I first graduated from college. It meant I couldn’t easily move to another company and do the same thing I was doing. I left the company but then had to work in another area for several years.
One of the biggest reasons SV wants trade secrets strengthened is that it makes it hard to change jobs and thus you can control the salaries and the workers.
Plus, I guarantee you that creative attorneys are going to find all sorts of ways to expand trade secrets that no one has thought of. Just as an example. What if a SV company decides to create its own internal programming language to code its product. And then claims that the programming language is a trade secret. Then the workers are then trapped in the company after spending years learning the programming language and likely an operating system. The workers may take two years to come up to speed in the new programming language. The reason this is not happening now is that there is too much competition for the labor so that the companies don’t try to force things like this.
As another example, think about the early C compiler from Microsoft. Guess what Microsoft tried to do? They tried to say that they had rights to every product you created using their C compiler. We had to find another C compiler and I had to work with the developers of the C compiler to extend their compiler to work with low level assembly language issues to control PCs.
Just some food for thought. Pushing trade secrets is —frankly—“evil.”
AnonNovember 15, 2020 08:55 am
I am not a Hannity or Fox News fan, but I did get a chuckle when a friend shared this with me:
AnonNovember 15, 2020 08:18 am
Gene @ 18,
This was a particularly intensely “anybody but” ran campaign by the Democrats.
When the strength of your policy talking points is an absence of any actual talking (the “hide in the basement” approach), and the real rhetoric centers on “Orange Man Bad,” we — and in this case, most definitely the Royal We — get what we deserve in the way of ‘surprise’ policy decisions.
PAUL V MORINVILLENovember 14, 2020 11:29 pm
Gene QuinnNovember 14, 2020 03:14 pm
You are right. If the exit polls can be trusted (a big if) 51% of those voting for Biden did so because he was not Trump. What seems to be coming to light in a number of areas is that some, perhaps many, of those who voted for Biden didn’t know what he stood for in terms of policy. So, that was my point about elections having consequences. A lot of President Trump’s policies are quite popular (i.e., no war, peace in the Middle East, and yes, strong IP rights, etc.). When you choose to vote against the person who supports the policies you like it shouldn’t be surprising when the other guy changes course on issues that matter to you.
Night WriterNovember 14, 2020 10:13 am
Trade secrets are a horrendously bad idea.
BennyNovember 14, 2020 03:25 am
I think most American citizens, including inventors, creators, and attorneys, have more important agendas than IP to consider when choosing which administration to vote for.
AnonNovember 13, 2020 08:01 pm
You mouth the Efficient Infringer points so well.
Maybe though, you might want to understand the issues first. For example, you should know that only marginal patents mostly make it to litigation, as the more solid ones wisely avoid litigation – so your view on percentage valid is profoundly off.
Gene QuinnNovember 13, 2020 07:28 pm
Andrew F @ 9…
You must be a liberal political hack. I’m just guessing since you seem to think you’ve done something clever by quoting something I wrote over 7 years ago about Colleen Chien and then acting as if it has relevance about her views (or my views relating to her views) today in 2020. Such junior high level of stupidity is really unbecoming. Nevertheless, I’ll be happy to respond so as to whack you back into your anonymous hole.
First, I wrote those words about Colleen Chien prior to her being against the STRONGER Patents Act, which hadn’t even been introduced yet.
Second, I wrote those words before she played a role in the selection of Michelle Lee to run the USPTO, which turned out to be a complete and total disaster. Michelle Lee did not become Director until January 2014.
Third, as I said in 2013, I don’t always agree with Colleen Chien, but believe her to be a good person who means well. I personally don’t have any problem with her being on the Biden Transition Team, but the problem is that she has very specific views that favor Silicon Valley at the expense of innovators and she is the ONLY person on the Transition Team with ANY knowledge of patents. So, that would suggest Biden is looking to move patent law and policy in a radically different direction— an Obama Administration direction that led the U.S. Chamber to rank the U.S. outside the top 10 countries for patent climate.
Fourth, in 2013 Colleen Chien had not written nearly as extensively about her pro-infringer views. For example, the WSJ article telling people sued for patent infringement to ignore such law suits was written in 2015, which is actually AFTER 2013 when I wrote what you quoted.
Fifth, Colleen Chien is on record consistently saying that her research with Aarti Rai shows that there has been no decline in attempts to patent medical diagnostics since Mayo. I don’t know what Chien and Rai are looking at, but it is well known throughout the industry that you simply cannot patent a medical diagnostic. Just earlier today at the 64th Annual JMLS IP Conference (online because of COVID-19) Kevin Noonan, one of the Patent Docs and a preeminent expert in this area stated point blank that the Federal Circuit has finally gotten the message out to the industry to stop bringing medical diagnostics to the court because until either the Supreme Court or Congress changes the law medical diagnostics cannot be patented. The medical diagnostics industry is reeling, and it is entirely disingenuous for anyone to suggest (or pretend really) that Mayo v. Prometheus is not directly responsible. Again, Chien is on record with these statements and “research” after I wrote the language you quoted.
I could go one and one. When Chien talks about “innovation” she does not talk about it in the same way that inventors talk about innovation, but in a much more consumer product centric fashion typically, which really more directly coincided with “implementer” not “innovator”. When Chien talks about patent quality her papers and testimony are difficult, if not impossible, to parse. She says the Patent Office should do better up front, and urges the Office to examine alternatives openly. She has talked about the oddity that in the U.S. we have to disclose references, while other Office don’t require that, and the need to give patent examiners more time. These things are fine, but to a patent practitioner there are myriad of issues that addressing one issue will cause— the unintended consequences that an academic wouldn’t understand. For example, it is hard enough for the USPTO to keep quality examiners who can deliver on the required quota. Where are you going to find more examiners to hire to give every examiner more time? And does that even make sense given how so few patents are commercially relevant? And if you cannot get a patent within a reasonably short time frame is it even worth it given the speed of technology? These issues are very important, and I’ve seen nothing in her writing or testimony that appreciates the delicate balance. In fact, much of what she seems to favor would drive innovation underground (i.e., trade secrets) and make succeeding difficult if not impossible for startup tech companies that need strong patents to obtain funding and survive.
leftcoastmidwesternerNovember 13, 2020 02:13 pm
With all due respect, the swing during Iancu and Delrahim took things from a relatively balanced approach to a completely pro-patent system that advances NPE (“troll”) and questionable licensing programs (IP rights don’t benefit anyone if (a) they’re not valid, and (b) adopting them is exorbitantly expensive). Give me appointees who understand the balance of economics, the need for more resources so we can have confidence in the validity of issued patents (US run rate of <20% litigated patents found valid last time I checked), and the energy to make the changes necessary.
Night WriterNovember 13, 2020 01:27 pm
@9 That was seven years ago. A lot of water has gone under the bridge since then.
@10 John White. The world has changed. Before it was almost all about money. Now it is all about money.
1933_revisitedNovember 13, 2020 12:48 pm
Your concerns about IP policy under a Biden administration are trivial in comparison with the danger to our democracy by Trump’s march towards fascism that we are presently experiencing.
John WhiteNovember 13, 2020 12:22 pm
Patents should be and remain a non-partisan issue. Over the years, one cannot really correlate good or bad patent policy with a given brand of politics. We have had, historically, good and bad patent policy, sometimes within the same administration? (Obama/Biden). Frustrating. I think it is more mis-guided than outright bad, or craven, to a given side or perspective. What they hope to achieve crashes and burns, but never really gets fixed. We just learn to deal with it. The PTAB creation and implementation has been truly awful. It was a “good” idea in theory, an inexpensive expert patent forum, that has gone completely off the rails. This needs to be remedied. Forthwith. And, bi-partisan support may form on the hill to do this; the main players on this survived re-election and may be back at it in the next Congress. One can only hope. As for Academics, they struggle in the “real” world where theory is put into practice. Their ideas may have merit, in the abstract, but implementation can prove to be like pushing on a rope. As such, listening to Academics can be helpful (they suggested the CAFC way back when), but others should devise and implement the policy.
Andrew FNovember 13, 2020 12:01 pm
“Chien brings substantial technical and policy expertise to OSTP, as an internationally recognized expert in patent law. Chien was recently named one of the 50 most influential people in intellectual property worldwide by Managing IP magazine. She has testified before Congress, and has regularly provided comment and input to the Patent and Trademark Office, Federal Trade Commission, and the Department of Justice. Prior to entering academia, Chien practiced law at Fenwick & West LLP in San Francisco, worked as a strategy consultant, and, while a Fulbright Scholar, as an investigative journalist.”
~ Gene Quinn
“Even if I don’t always agree with her, what she writes provokes thought and meaningful discussion, which is never a bad thing. Frankly, I wish government would be full of people like Professor Chien. She seems to really care and wants to make a difference.”
~ Gene Quinn
Night WriterNovember 13, 2020 11:02 am
The only person I can image that would be worse than Colleen Chien is Lemley.
Night WriterNovember 13, 2020 11:00 am
Colleen Chien is a cohort of Lemley. Have you actually read her papers? I have. In my view they are not ethical. Her cites do not support what she claims they do and her papers make wild assumptions that have no grounding in the real world. She like Lemley who claimed in one paper that software has no structure, which is, of course, absurd on its face and contrary to hundreds of academic papers from the EE/CS community.
I cannot image a more toxic person for patents than Colleen Chien.
AAA JJNovember 13, 2020 10:21 am
“In no fewer than six swing states, the vote was so close that President Trump and his lawyers have launched a series of lawsuits that have already made their way to the United States Supreme Court. ”
None of the suits that Drumpf and his band of incompetent attorneys have filed after the election have made it to the Supreme Court.
David HoyleNovember 12, 2020 10:07 pm
Gene if you don’t take a more aggressive vocal opposition, via ipwatchdog, and anything else you can think of, now, we will return to the Obama-Michelle Lee death squad days once more.
IPdudeNovember 12, 2020 05:33 pm
Game over, again. Sucks.
John KNovember 12, 2020 02:05 pm
Great article Gene.
Pro SayNovember 12, 2020 01:53 pm
So . . . anyone know where we can buy some “Trump 2024” stickers, signs, and banners?
Paul MorinvilleNovember 12, 2020 01:25 pm
One concerning participant in the Biden transition team is in the Council of Economic Advisers – Martha Gimbel with Schmidt Futures. You can see Schmidt Futures at https://schmidtfutures.com/. This is Eric Schmidt’s organization. Schmidt was the driving force that destroyed the patent system.