USPTO: One Deep State Swamp Backwater That Is Getting Drained
Donald Trump ran for the presidency promising to “Drain the Swamp.”
We the People liked the pledge. So we elected him.
President Trump has acknowledged that the Swamp is much deeper - and its Creatures much nastier - than he anticipated.
Which is an understandable underestimation.
I was born and raised in a proximate Swamp suburb. I long saw the Swamp up close and personal. I watched it grow and grow for decades.
And I too underestimated the depth and nastiness Trump would encounter upon his taking office.
But significant progress is being made.
In many areas inside the fetid, festering Swamp - just undoing two terms of Trump predecessor Barack Obama in less than one term is itself a MAJOR accomplishment.
And so has it been at the United States Patent and Trademark Office (USPTO). Credit goes to Trump - and his choice for Chairman: Andrei Iancu.
Let us briefly examine the incredibly damaged-by-the-Obama-Era system Trump and Iancu inherited.
Most unfortunately, Obama didn’t eviscerate the US patent environment singlehandedly. He had Republican help.
We Are Surrounded by Intellectual Property - Until We Aren’t:
“In this the Digital Age and the Information Economy – Intellectual Property and its protections have only become even more important.…
“So why did we spend the entirety of the Barack Obama Administration undermining it all?
“The Administration spent its eight years issuing all sorts of regulations and rulings – and filing all sorts of lawsuits – all designed to undermine IP.
“Republicans were hardly better. In sickening pursuit of Big Tech political coin, they gleefully drafted and passed the very awful, very-awfully-misnamed America Invents Act.
“Which – like the Affordable Care Act – did the exact opposite of what the name suggests. It strip mined IP protections from anyone inventing anything.
“And of course, the-most-anti-IP-President-ever Obama – gleefully signed it.
“The result? When Obama entered the White House, the US was on the global innovation ranking list – consistently #1 or very close to it.
“By the time we were rid of Obama?
“Intellectual Property Crisis: U.S. Drops Out Of The Top Ten In Innovation Ranking.”
Now, it would be FANTASTIC if our Congress passed a law undoing the very awful, very-awfully-misnamed America Invents Act.
Another Obama-Undoing Great Idea: Plug the Obama-Era Holes In Our Patent Protections
Undoing Obama Policy - Is Excellent Policy
But our Congress these days has a difficult time passing anything.
Although Iancu seems to be an eternal optimist.
Iancu Says Congress May Be Up for Patent Eligibility Reform
Thankfully, Iancu hasn’t been fiddling while Congress and the US patent system burn.
Where he can do things - he has been doing great things.
Why Patent Practitioners Are Warming to Iancu’s PTAB Reforms
“Since it was created in 2012, the (Patent Trial and Appeal Board) PTAB has become a vital - and controversial - part of the patent dispute landscape in the United States. For many of those eight years, the board was seen by many to be, in the words of former CAFC Chief Judge Randall Rader, ‘the patent death squad.’
“Now, though, perceptions are changing. A series of reforms undertaken since Andrei Iancu became USPTO Director, alongside a growing collection of Federal Circuit rulings, mean that the balance between petitioners and patent owners is being recalibrated. Iancu himself has talked of ‘a new day at the PTAB.’”
A “new day at the PTAB” - is outstanding.
The “last day for the PTAB” would be best - but again, that requires Congress. They created this disaster - they have to make it entirely go away.
Iancu lessening the damage PTAB can do - is very good news.
Oh: Obama and the Republican Congress also had judicial help in undermining the US patent system.
Alice Corp. v. CLS Bank International:
“(A) 2014 decision of the United States Supreme Court about patent eligibility….(T)he case was widely considered as a decision on software patents or patents on software for business methods….
“(The Court) declared each of Alice's patents invalid because the claims concerned abstract ideas, which are not eligible for patent protection under U.S.C. § 101….
“The Software Freedom Law Center said the Supreme Court: ‘took one more step towards the abolition of patents on software inventions.’”
That’s not great.
USPTO Director Iancu Proposes Revised 101 Guidance
“Iancu proposes a new inquiry into whether an exception to patentable subject matter ‘is integrated into a practical application’ - if so, ‘the claim passes 101 and the eligibility analysis would conclude.’”
Iancu’s work to restore our patent system - has borne fruit. By 2012, Obama and Company had driven us out of the top ten on the Global Innovation Index.
We’re now back up to #3. And rising with a bullet.
This tremendous success - has led to this….
Letter to Congress: Iancu is Good for the Patent System
“The undersigned represent a diverse array of American innovators, ranging from universities and non-profit foundations, to individual inventors, to start-ups and small businesses, to manufacturing, technology, and life sciences companies.
“Together we represent thousands of organizations that employ millions of workers in the United States. We all believe that the future of the U.S. economy, including domestic job growth and our competitive advantage in the global economy, depends on a strong patent system that incentivizes innovators to invent and protects their inventions from unfair theft by others.
“We write to express our support for the important improvements the U.S. Patent and Trademark Office (USPTO) has implemented over the past several years under the leadership of Director Andrei Iancu.
“In this short period, Director Iancu has clearly changed the dialogue surrounding patents, defined the patent system by the brilliance of inventors, the excitement of invention, and the incredible benefits they bring to our economy and society as a whole.
“He continuously demonstrates commitment for restoring balance and confidence in the U.S. patent system.”
Continue Iancu Reforms Should Trump Lose, Patent Owners Urge
Well, we should also reelect the guy who hired him.
This first appeared in Red State.