Patent Riffs and Links: More on Director Iancu’s ‘Create a New Narrative’ Remarks

Last week newly installed USPTO Director Iancu gave a speech indicating change was afoot in the patent system. Here are some more thoughts from around the web on his comments:

Negative patent dialogue must change, says Iancu | IPPROPATENTS
Reframe the narrative – “In his address, Iancu focused on creating new pro-innovation and pro-intellectual property dialogue, as well as increasing the reliability of the patent grant.

Iancu explained that errors and abuse in the patent system should be ‘swiftly eliminated, but on the whole, the focus for discussion and IP policy should be positive… He said: ‘We must create a new narrative that defines the patent system by the brilliance of inventors, the excitement of invention, and the incredible benefits they bring to society … it is these benefits that must drive our patent policies.”

News USPTO Director Iancu has powers to significantly reform PTAB processes unilaterally, but will he? 13 Apr 18 | IAM-MEDIA
Former Dir. Kappos on a panel: “’Hopefully now that we have new leadership in the PTO they can quickly start the iterating process to flex on things that the agency can flex on while still meeting its timing requirements, and fix the balance of fairness backed by the STRONGER Patent Act, and then you can really have an excellent review system.’ … Also featuring on the LeadershIP panel was Jamie Simpson a staffer for Senator Chris Coons, who is the author of the STRONGER Patents Act which has proposed numerous changes to PTAB procedures (former CAFC Chief Judge Paul Michel was the fourth panellist). According to Simpson, of the 10 PTAB changes in the Act, seven could be implemented by Director Iancu. The question is: will he decide to do so?”

US needs more positive patent dialogue, says Andrei Iancu | WORLDIPREVIEW
Inferences? “Iancu also emphasised that the industry must focus on the reliability of the patent grant…According to Iancu, the current law surrounding patentable subject matter is hurting innovation and, consequently, investment and job creation. He cited recent cases from the US Supreme Court including Mayo, Myriad and Alice as making the interpretation of the statute more confusing. ‘Lower courts applying these cases are struggling to issue consistent results. Patent lawyers trying to advise their clients are, in turn, struggling to predict the outcome with respect to certain patents. And examiners at the USPTO must spend increased amounts of time addressing this challenging issue… To overcome this, he suggested that more clarity is needed.”

Director Iancu Recognizes Reliability of Patent Grants Incentivizes Innovation | IPWIRE
“I applaud Iancu for having the common sense to recognize that the flawed patent eligibility standards imposed by recent Supreme Court cases ha made patents less valuable across the board. Multiple people looking at the same patent often reach a different conclusion using the same patent eligibility test. Furthermore, patents that are clearly directed to tangible inventions can always be simplified to some level of abstraction by a skilled patent attorney… Even though this result suggests an unworkable standard, Iancu lamented that the PTO is limited by its statutory mandate and must apply Supreme Court precedent faithfully. The PTO can, however, as Iancu noted, simplify the eligibility determination and provide a more predictable examination process for subject matter eligibility. I think Iancu should go a step further and continue his criticism of the Supreme Court’s harmful precedent. It’s unlikely that the Supreme Court or Congress will fix this mess any time soon, but Iancu can actively change the narrative on patents by loudly criticizing bad policy and law when either hinders the primary function of the patent office – incentivizing investment in innovative technologies. [] Iancu also addressed the negative impact opposition proceedings like the IPR are having on patent confidence. In doing so, he noted that the PTO needs to ‘carefully balance rights-holder’s and rights challenger’s interest.'”

USPTO Director Outlines Challenges to the Patent System at the U.S. Chamber of Commerce Patent Policy Conference | NATLAWREVIEW
Some thoughts directed to 101/life sciences: “What makes this talk important is the Director’s recognition that the Mayo/Alice/Myriad ‘Rules are rife with uncertainty for all of the stakeholders. He emphasized that the Office cannot ignore Supreme Court precedent, but he felt that the Office can also ‘simplify the eligibility determination for our examiners through forward-looking guidance. (His comments about reviewing all aspects of IPR were more general in nature.)… Of course, I hope that Iancu comes to the recognition that most of the uncertainty and lack of clarity afflicting life sciences patenting comes from the PTO’s sua sponte decision to read and apply both Mayo and Myriad more broadly than the facts and the ultimate Supreme Court decisions require.”

Iancu Aims to Tackle U.S. Patent Quality Issues | BIGLAWBUSINESS
More to come: “Recent Supreme Court rulings have inserted standards into the patent office’s interpretation of federal law that are difficult to follow, Iancu said. Lower courts are handing down inconsistent opinions as they interpret the high court decisions, making the patent system less predictable, he said… Critics say PTO patent validity proceedings under a 2011 law are unfair to some patent owners—and potentially unconstitutional. The Supreme Court is weighing the constitutionality of the office’s patent validity review process in Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC. The high court is expected to issue a ruling in that case by the end of June… ‘Both arguments have legitimate elements. Iancu said. ‘But I encourage people to reduce the hyperbole and look at the process with fresh eyes, in order to understand its true benefits and true challenges…’ Iancu is scheduled to testify before the Senate Judiciary Committee April 18 at a PTO oversight hearing.”

Time to Reverse America’s Innovation Decline | AMERICANTHINKER
Ken Blackwell of ACRU and an advisor to Trump-Pence campaign on domestic policy – “The STRONGER Patents Act reflects an understanding of the unique challenges inventors face and fully appreciates the important role strong patent protections have in our innovation economy. The barriers American innovators face in maintaining global competitiveness are real but not insurmountable if Congress and the Trump administration take action. STRONGER addresses the erosion of fundamental property rights by Congress and the courts in recent years and helps swing the pendulum back toward American innovators…In addition to the congressional moves, President Trump recognizes better than anyone that the future of American leadership depends on staying ahead of both our friends and our foes. On trade policy, Trump has challenged conventional wisdom and put China on notice that intellectual property theft will be met with American strength and resolve… In a positive sign, President Trump’s newly confirmed director of the Patent and Trademark Office (PTO), Andrei Iancu, seems to understand that America’s patent system is in decline and that the PTO can be a force in reversing this trend. At a recent address to the U.S. Chamber of Commerce’s Patent Policy Conference, Director Iancu said, ‘As a nation, we cannot continue down the same path if we want to maintain our global economic leadership. And we will not continue down the same path. This administration has a mission to create sustained economic growth, and innovation and I.P. protection are key goals in support of that mission.'”

Sessions Turned to Convicted Fundraiser for Advice on U.S. Attorneys | PROPUBLICA.ORG
Still, Iancu was confirmed 94-0… “According to the documents reviewed by ProPublica, Broidy also made recommendations for ambassadorships and other administration positions, several of whom the Trump administration did nominate — including the current director of the U.S. Patent and Trademark Office. That man, Andrei Iancu, appears to have known Broidy at least in part because he bought Broidy’s Los Angeles home in 2005 for $3.25 million… The White House did not respond to a request for comment. In a statement, Broidy did not directly address whether Sessions had asked him for input, but said, ‘I gladly recommend good people to serve in important positions in our government. They, like anyone, have to go through the normal vetting and background investigation process. I was honored to make recommendations in the past and would do so again for the right candidates.”

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