Trump Picks for Commerce and DOJ Are at Odds with Rumored Pick for USPTO

Last week President-elect Trump announced that he would nominate Gail Slater as Assistant Attorney General for the Antitrust Division of the Department of Justice. In the announcement on TruthSocial, Trump wrote: “Big Tech has run wild for years, stifling competition in our most innovative sector and, as we all know, using its market power to crack down on the rights of so many Americans, as well as those of Little Tech!”

Meanwhile, people with knowledge of the Trump Transition tell IPWatchdog that the front runner to be named Director of the United States Patent and Trademark Office (USPTO) continues to be Vishal Amin, Intel’s head of IP policy. While it is true that Amin served as the Intellectual Property Enforcement Coordinator during President Trump’s first term, the appointment of Amin to head the USPTO would be an extraordinary head-scratcher, if that in fact does come to pass.

Ideologically Opposed

Simply stated, nominating Amin to run the Office makes no sense. In addition to naming Slater as antitrust head and directing her to go after Big Tech, his nominee for head of the Federal Communications Commission (FCC) has similarly announced he will go after Big Tech. And Trump’s nominee to run the Commerce Department—of which the USPTO is a subagency—is himself a prolific inventor who has made many millions of dollars monetizing patents, which Amin seems to vilify as an inappropriate use of the system.

Does anyone really think that Howard Lutnick, who has invented in software, process and gaming fields, is a fan of the patent-killing Patent Trial and Appeal Board (PTAB)? And why would Trump nominate someone philosophically and ideologically at odds with Lutnick about the nature and purpose of the patent system to run the patent system within the Department of Commerce? It would be a disaster in the making to have the Director of the USPTO fundamentally opposed to the Secretary of Commerce on patents.

Few people are more closely identified as being responsible for the subjugation of Little Tech at the hands of Big Tech than is Vishal Amin. Not only is he in charge of IP policy at one of the largest Big Tech giants in the world—a company that is among the top 10 challengers of patents—but he was one of the primary architects of the PTAB. The PTAB has laid waste to thousands of patents held by Little Tech for the benefit of Big Tech elites who can afford to file as many challenges as necessary, and they often do challenge each patent five, six or more times with simultaneously filed and coordinated attacks. And if any one of those coordinated patent attacks results in a final written decision by the PTAB, the likelihood of the patent owner prevailing is negligible. In fact, 85% of all patents reaching final decision lose at least one claim and 70% lose all claims, which is why the PTAB has been referred to as a “death squad”.

Amin’s PTAB Has Crushed Little Tech

Simply stated, the PTAB is a real killing field for patents, and a disaster for Little Tech companies, who already have a substantial uphill battle against Big Tech elites. And some who have spoken with IPWatchdog have characterized the slaughter of Little Tech patents for the benefit of Big Tech as Exhibit No. 1 as to why the U.S. patent system has become little more than a scam. It costs tens of thousands of dollars to prepare and prosecute patents at the USPTO, the USPTO takes many years to review and consider whether to grant a patent, which in turn costs more money, and if a valuable patent is issued then you can rest assured it will be challenged and will have little hope of surviving. A great deal for Big Tech, but an absolute catastrophe for Little Tech, who needs patents to have any kind of chance to attract funding and compete.

And it is the fact that Little Tech has been so thoroughly brutalized at the hands of Big Tech through abusive use of the PTAB process that makes Amin as Director of the USPTO such a peculiar choice. If the patent system was functioning, with strong rights for innovators, there would be no need for antitrust enforcement against Big Tech. With a functioning patent system, Little Tech innovators who disproportionately innovate the most important and paradigm shifting inventions, would be able to compete without the federal government getting involved. The best technology would win out in the marketplace.

Under the current regime, where patent rights are weak and patents never mature into a quiet title, it is impossible for Little Tech to attract the investment necessary to move forward with even clearly superior innovation. Investors know that Big Tech can and will swoop in and take what they want without paying. That has been the stated policy for Big Tech, as was demonstrated by Facebook’s mantra that employees should not let pride get in the way and should instead copy rivals. With a weak patent regime, the only way to demand Big Tech does not trample Little Tech is through aggressive antitrust enforcement, which would be unnecessary if Little Tech innovators with the best innovations had any realistic opportunity to attract investment, grow and succeed on merit.

Amin’s Views Remain Anti-Patent

While the view of people often does change, we know that Amin’s view of the PTAB has not softened or changed over the years. Amin seems to have a real disdain for Little Tech, incorrectly believing that the only innovators are Big Tech and everyone else is merely running some kind of scam against what he characterizes as a rather helpless industry full of the largest companies in the world who are being bullied by small entities. The narrative is as ridiculous as it sounds. In a 2022 op-ed, Amin tried to explain how bullied Big Tech is, writing: “Without a well-functioning [inter partes review] IPR system, those targeted by patent trolls have to mount an expensive defense or capitulate to settlement demands.” Talk about a bizarro reality where up is down and down is sideways!

Based on the PTAB’s own statistics, 18 out of 20 of the most prolific patent challengers are from Big Tech. And nearly one-third of IPR challenges by petitioners are settled, which means the patent owner simply gives up rather than fight. And the decision to give up by a patent owner is quite practical. There is little reason for most patent owners to fight, with 70% of all patents reaching a decision being lost entirely and 85% losing at least one claim. With a price-tag of $500,000 to $1 million in attorney’s fees alone to fight an IPR, it is no surprise that so many patent owners who face a challenge from Big Tech at the PTAB just give up. Little Tech simply cannot afford to defend the patents that they have spent years obtaining and invested many tens of thousands of dollars to get, and much more money to build companies upon. And even if Little Tech succeeds in a particular challenge, there is absolutely no estoppel of any kind—the patent can be, and often is, repeatedly challenged by organizations and other Big Tech companies until the patent owner finally loses. This is why so many in the patent owner and innovator community believe the fight to preserve a patent is never over until the patent has been finally defeated.

For Amin to say or suggest that Little Tech is abusing Big Tech and is somehow forcing Big Tech to capitulate is counterfactual. In fact, there is a growing understanding in Congress that Big Tech is abusing the PTAB process and harming Little Tech, which is why PTAB reform has moved further this Congress than at any previous time despite widespread Big Tech pushback.

Amin also attempted to spin a counterfactual narrative during his recent George Mason panel, where he matter-of-factly stated that patent litigation is rising, which is simply false. “What we have seen in the intellectual property context is a lot more litigation the past five, maybe six years,” Amin said.  What is true is that there has been a dramatic drop in the amount of patent litigation over the last decade.

According to a study published earlier this year, patent litigation has “decreased significantly”, from 6,497 cases filed in 2013 to only 3,639 cases filed in 2022. Similarly, the study shows that the median patent infringement award in litigation peaked in 2005 at $9 million and has decreased to only $2.4 million. Still further, permanent injunctions have fallen sharply as well. Amin and others can only say that patent litigation is increasing, or still presents a problem for Big Tech, if they ignore the truth. But what they say, as objectively false as it is, has often been taken as gospel by a sympathetic government and a complicit popular press.

Amin at the Helm Would Make No Sense

The formation of the PTAB has been an utter catastrophe for Little Tech, and based on his own biography he was the lead author of the America Invents Act (AIA) and primary architect of the PTAB. Amin’s views have not changed—he continues to proclaim patent trolls to be a problem despite all evidence to the contrary. If President-elect Trump is really interested in helping Little Tech survive the gauntlet of unfair competition from Big Tech, it would make no sense whatsoever to select a Big Tech sympathizer who believes the only good patent is one owned by Big Tech.

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Author: iqoncept
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