What Went Wrong and How to Fix the Patent System | IPWatchdog Unleashed

This week on IPWatchdog Unleashed I speak with my long-time friend, John White. Many in the patent community no doubt already know John quite well. Over 30 years ago he created the PLI Patent Bar Review Course that upwards of 40,000 patent practitioners have successfully used to study for the Patent Bar Exam. Today, John continues to teach the patent bar review, but he is also Special Counsel with Harness IP, where he represents clients all over the world and provides expert witness services. You can listen to our full discussion wherever you get your podcasts (links here) or you can visit IPWatchdog Unleashed on IPWatchdog.com. You can also watch the video below, or on YouTube.

I’ve known John since 1999 when I first started teaching the PLI Patent Bar Review Course, and we have been great friends ever since. John was even my best man when I married Renee! And at times over the years, at least before the pandemic when we would roam the country teaching live, in -person patent bar review courses, for much of the summer we would see each other more than we would see our families, eating dinner together and enjoying drinks—but always discussing either patents, sports or politics—and most often it was patents that we spent our time discussing. Students would often say surely you don’t talk about patents and patent law in our down time, do you? And for better or worse, the answer is patent, patent law, the USPTO, litigation and inventing were always far and away the most popular topics of conversation.

Our conversation this week was much like any number of conversations we have had through the years over dinner and/or drinks. What prompted me to ask John to speak with us this week was an article he recently wrote, which we published on IPWatchdog. It was styled as an open letter to Elon Musk and Vivek Ramaswamy, the incoming co-leaders of the soon-to-be Department of Government Efficiency. In that article, John explains that “the patent system is currently foundered”, but that it can be fixed with “focus and ongoing commitment to see the fixes through to results.” So, that is where we start our conversation, like so many we have had over the last 26 years—what is wrong with the patent system and how should it be fixed.

We begin with John explaining that before President Reagan’s run in the White House the backlog at the Patent Office had grown rather out of control, but the Reagan Administration wanted it fixed, and pendency was reduced to 18 months when President Reagan left Office. And this was the dawn of the golden era for patents in the United States, with the formation of the Court of Appeals for the Federal Circuit and an understanding that innovation and patents to protect that innovation would help the U.S. surpass Japan and become the dominant technology country in the world.

Sadly, while the U.S. patent system continued to be the gold standard around the world through the Clinton Administration, something changed shortly thereafter. The moment that BlackBerry was facing an injunction unless they paid over $600 million was a pivot point in modern U.S. patent history, and somewhere along the way America’s largest tech companies decided they really didn’t want or need strong patents, which led to injunctions no longer realistically being available even to patent owners who proved infringement, and a never ending series of bills introduced in Congress and judicial decisions over the last 20 years that have overwhelmingly sought to make patents harder to obtain, easier to challenge, and not at all like property.

For me, as I say during our conversation, a lot of what has befallen the pro-patent community over the last two decades is owed to the fact that everyone seems to advocate in favor of patents regardless of who owns the patents. And while I agree that is the way it should be, that is not the way that most with decision-making authority over the patent system feel. They do see a difference—a big difference—between operating companies and those that are not operating companies. So, instead of advocating for research and development companies, independent inventors who’s only product is innovation, and investors who invested in the creation of patentable inventions, the community has always refused to accept any position that would treat patents differently even if, for example, a group of lawyers having nothing to do with the underlying innovation or investment buys up the patents simply so they can sue companies that are engaging in commerce. Whether we like it or not, the desire to leave no patent owner behind has taken all patent owners down.

But this is just the tip of the iceberg in what was an extremely fun, and I think entertaining, conversation. So, without further ado, here is my conversation with John White.

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