“Andrei’s leadership is the gold standard that any future director must adhere to. The next USPTO Director must truly appreciate and value IP and treat it for what it is – a vested property right. And she must commit to strengthening these rights.” – Senator Tillis
In his keynote video address to PTAB Masters participants today, Senator Thom Tillis (R-NC) championed the record of former U.S. Patent and Trademark Office (USPTO) Director Andrei Iancu, and said that Iancu’s successful attempts to address many of the complaints with the Patent Trial and Appeal Board (PTAB) during his tenure should be codified into U.S. law.
Changes such as harmonizing the PTAB claim construction standard with that of the district courts and making significant changes to the PTAB’s Standard Operating Procedures that have helped to create uniformity and instill transparency, all helped to provide more certainty for inventors, Tillis said. He continued:
These changes have helped to ensure all rights holders, from individual inventors to innovative startups, to industry titans, all receive equitable treatment – now we must ask ourselves do we believe the initiatives and reforms Iancu has undertaken have long term merit and value? I believe they do, and I think Congress should consider codifying Director Iancu’s actions – especially his reforms to the Patent Trial and Appeal Board.
Yesterday, former USPTO Director David Kappos explained to PTAB Masters attendees that even he – the implementer of the America Invents Act (AIA) and related rules package governing PTAB trials – had expected that there would be an iterative process in subsequent years and across USPTO administrations in order to iron out problems as they arose. When that didn’t happen, the PTAB scales tipped too far to the side of petitioners, and left patent owners feeling abused by the system. This arguably underscores the importance of the next USPTO Director continuing the work that Iancu started in order to avoid repeating that history, a point which Tillis also emphasized:
We have to ensure the Biden PTO Director is committed to continuing [Iancu’s] work. We cannot have the PTAB return to a ‘death squad’ for IP rights. Andrei’s leadership is the gold standard that any future director must adhere to. The next USPTO Director must truly appreciate and value IP and treat it for what it is – a vested property right. The USPTO Director must understand that clear, predictable, enforceable IP protections are absolutely critical, and she must commit to strengthening these rights.
Tillis added that the AIA’s legislative history makes it very clear that Congress was worried about abuse of the PTAB, particularly that multiple PTAB proceedings brought by large companies could become a huge burden on innovators. Serial inter partes review (IPRs) petitions, which Iancu also attempted to address, still plague the PTAB, and Tillis said: “The legislative history shows that Congress believed duplicative petitions and weaponized proceedings could be one of the worst evils. The effect of serial petitions is to magnify the cost and the burden of a PTAB defense to the point that many patent owners accept defeat and stop defending their patent or asserting it against alleged infringers. This and other issues raise serious questions about whether the PTAB, AIA, IPR and post grant review proceedings are working the way Congress intended.”
Today’s PTAB Master’s Program will also include a keynote from PTAB Chief Judge Scott Boalick, and a panel titled “The Trial: Stop Spinning Your Wheels & Start Winning” will examine PTAB trial strategies and tactics.
IPWatchdog’s PTAB Master’s 2021 is happening now, and will take place through tomorrow from 11:00am to 2:00pm each day. Upcoming speakers include Retired CAFC Chief Judge Paul Michel. Register to attend for free now.