It’ll Be Great to Have the Patent Office Again Issuing Patents - Rather than Killing Them
Back to Creating - Rather than Destroying
Time and again, the Donald Trump Administration has done the exact opposite of what the predecessor Barack Administration did.
Most thankfully - for the health and well being of our nation.
Obama imposed tens of thousands of pages of new regulations. Trump has been cutting twenty-two regs for every one he adds.
Obama imposed Obamacare. Trump and Republicans have excised key elements of the heinousness.
And on, and on, and on….
Thank God. And the results have been - unsurprisingly spectacular.
And on, and on, and on….
Often, Obama had agencies designed to do “A” - instead do “Not A.” The exact opposite of the joints’ stated names and mission statements. It got to be very Orwellian.
A quintessential example thereof - was Obama’s obnoxious abuse of the United States Patent and Trademark Office (USPTO). Obama turned an agency created to approve patents - into one that destroyed them.
Most perniciously, Obama obnoxiously teamed with an obnoxious Congress to create within the USPTO - the Patent Trial and Appeal Board (PTAB).
PTAB is a board within the USPTO - that kills the patents te USPTO issued. Thereby turning “A” - into “Not A.”
To begin with: I’m not a lawyer. I didn’t attend law school. So my mind isn’t addled by that particular three years of Leftist claptrap inculcation. So I can thus clearly analyze the PTAB - and make the determination that it is quite obviously unconstitutional…and thus should never have been created.
But then - when has that ever stopped anyone in DC?
Am I alone in this analysis? I am not.
The Left loves to do things unconstitutionally. Our Constitutional system - is set-up to represent the will of We the People.
And since the Left’s ideas are all so awful - they can not get the will of We the People behind them. So they must impose them unconstitutionally.
The PTAB - has been a big-company-crony-disaster. Where giant corporations can time and again steal patents from the Little Guy inventor.
“Fed up with what he perceived as bureaucracy run amok at the U.S. Patent and Trademark Office, Paul Morinville staged a striking protest this summer, with inventors marching on the agency’s Alexandria headquarters, holding signs and burning their patents.
“He said too many patents approved by the agency had been revoked by administrative law judges at the Patent Trial and Appeal Board, which he said tends to side with major technology companies in disputes with independent inventors.
“‘If you like to steal other inventors’ stuff, then you must love PTAB,’ said Mr. Morinville, managing director of U.S. Inventor Inc., an organization advocating for stronger patent protections for startups….
"One judge, for example, represented Apple Inc. in private practice and then ruled in favor of the tech giant 17 times after joining the court. Another judge represented AT&T Inc. as a private lawyer and later presided over a case involving the telecommunications company.”
Well isn’t all of that special.
Thankfully, the Trump Administration is looking to undo this Obama Administration nonsense too. And restore some balance to PTAB. Rather than continuing to - in Obama-fashion - favor the patent thieves over the patent holders. Returning the Patent Office - to being a patent office. “A” - rather than “Not A.”
Enter Andrei Iancu. Iancu is the Administration’s Under Secretary of Commerce for Intellectual Property - and Director of the USPTO.
And Iancu - is all the way down with the Trump reform agenda. He has proposed a very important and very necessary slate of PTAB changes:
“The United States Patent and Trademark Office (‘USPTO’ or ‘Office’) proposes changes to the claim construction standard for interpreting claims in inter partes review (‘IPR'), post-grant review (‘PGR’), and the transitional program for covered business method patents (‘CBM’) proceedings before the Patent Trial and Appeal Board (‘PTAB’ or ‘Board’).
“In particular, the Office proposes to replace the broadest reasonable interpretation (‘BRI’) standard for construing unexpired patent claims and proposed claims in these trial proceedings with a standard that is the same as the standard applied in federal district courts and International Trade Commission (‘ITC’) proceedings.
“The Office also proposes to amend the rules to add that the Office will consider any prior claim construction determination concerning a term of the involved claim in a civil action, or an ITC proceeding, that is timely made of record in an IPR, PGR, or CBM proceeding.”
Don’t you love Legalese? And the special sub-dialect thereof - Governmentese? It’s like Esperanto - only much less popular or comprehensible.
Let’s try this:
“The Patent Trial and Appeal Board (‘PTAB’) is experiencing significant practice changes thanks to recent feedback from the Supreme Court. In addition, the new U.S. Patent and Trademark Office’s (‘USPTO’) Director has committed to bringing further change to the PTAB. In a bold move, the Director has proposed a significant change to PTAB claim construction practices after only a few months on the job- with further proposals to come.”
Bring it all on. What Iancu is proposing - is to restore some semblance of sanity to the patent-destroying missile that is PTAB. Amongst very many very important reforms: Substantially circumscribing the latitude PTAB has with which to work - as it looks to kill the patents the USPTO issues. Thereby restoring some balance to the PTAB process.
Rather than having a board within to undo what the Office does - how about the Office just do what it does better? If you issue less bad patents - you’ll need to look to kill less patents.
Have the USPTO do “A” better. So you won’t have to have PTAB do “Not A.”
PTAB within the USPTO - is very much like a County government having a post-approval panel…rescinding the building permits the County issues.
You spend ages and AGES jumping through all the County approval hoops - to meet the County’s very many, oft-ridiculous demands. You spend thousands and thousands of dollars preparing all the materials for which the County asks.
The alleged excuse for all of this nonsense - is the County wants to make absolutely sure that what you want to build is up to code and to snuff.
And then - just when you think it will never, ever happen - congratulations! Your building permit is approved.
So you start spending hundreds of thousands or millions of dollars to start building.
Only to then have the post-approval County panel…change the County’s mind - and rescind your permit.
That’s what PTAB does to inventors.
Only inventors spend tens or hundreds of millions…or billions…of dollars researching and developing ideas - to get just one ready and able to apply for a patent.
They then wait ages and ages and spend even more money - to get through the USPTO approval process.
And then - just when they think it will never, ever happen - hooray! Their patent is approved.
So they then start spending tens of millions…or more…beginning to build the business to use the patent.
Only to then have PTAB…change the USPTO’s mind - and rescind your patent.
This is an obnoxiously awful way to run a railroad. Or a County office. Or a Patent Office.
God bless Andrei Iancu and the Trump Administration for looking to rein in this titanic nonsense.
This first appeared in Red State.