Five Questions The New Commerce Secretary Should Assert When Vetting A USPTO Director

“The USPTO should enjoy a fan at the helm–a knowledgeable fan and believer in what the USPTO is and does, and who can articulate and defend, in short sentences, its mission and vital purpose to the coming generations of America.”

Dear Howard Lutnick [the Trump Nominee for Commerce Secretary]:

In this busy transition season from one administration to the next, I am here to help! Lucky you! I have already written an open letter to DOGE [the Department of Government Efficiency] regarding patents in America. I understand that you are currently interviewing candidates for a position as Director of the United States Patent and Trademark Office. I have had the privilege of personally observing the effectiveness of the senior USPTO staff over the last 40 years. I’ve even written articles for this publication ranking them! I began my career as a speech writer and patent examiner for then Patent Commissioner Donald Quigg during the Reagan years. Since then, I’ve run several patent-related businesses and worked in private practice as both a patent attorney, and a teacher of patent prosecution practices (i.e. how to present and pursue a patent application through the USPTO, until issuance). I’d like to share my thoughts on the attributes I’d suggest you look for in the next Director.

First, this person must be an unabashed fan of the patent system! There are already enough critics, both in government and academia. The USPTO needs a fan to lead it, someone who is knowledgeable and believes in what the USPTO does and can explain and defend in a few sentences its mission and vital purpose for the future generations of America. Too often, those within the patent world fail to successfully communicate the ongoing scaffold to societal progress the patent system and USPTO create.

Patents and the incentive system surrounding their creation have created the future of this country since 1790. This is because our capitalist system is well-suited to support exploitation and use when you treat tangible concepts as if they were any other property. It can be owned, defended and leveraged in the same manner as any other type of property. It is not moral; it is an overall good for the nation across all technical disciplines. It does not matter if, after a patent has been obtained, it’s freely licensed, dedicated for the public, or used and preserved by a single entity. It is used to the maximum benefit of those who own or control that property. If the government has financed the property in part or in full, it should receive the same reward as any other owner. Bottom line: This nation needs more intellectual property in the form patents and not less. The first question an incoming director should ask is:

1 “Are you a ‘patent fan’ and can defend the USPTO for its role, both political-economic, inside and outside of an administration, and across the globe?” To achieve this, the USPTO must get to work. Recent hiccups due to COVID and policies derived from it have resulted a growing backlog. The first task of the new hire will be to get the USPTO back on track. Hire new examiners in accordance with the respective technical backlogs (i.e. computer scientists, biologists, etc.) and train them on-site. This training can take place at the main USPTO in Alexandria, as well as in regional USPTO offices around the country. After two years, and solid performance, a work from home or other flexible schedule may be permitted.

Working at the USPTO is exciting! It’s a great feeling to play a part in the future of technology for the country. Only valid patents are able to perform this function. The best search and analysis tools can be used to enhance the current examination system. Defensible properties create investment security. Indefensible properties, i.e. patents that are invalidated, create unpredictability, and only speculative investments. The Director should be asked: “Can you quickly devise and implement an effective plan to get the USPTO back on track?” In this regard, the interests of the country are best served by a minimum amount of restriction. If morality is a factor in the case of medicines and treatments for example, you should address it, if possible, during licensing or enforcement. The same goes for computer-implemented methods. Our programmers’ work, whose clay is software and computers, needs to be widely encouraged! AI is only the first wave. We may not understand or know about certain technologies, but if these are patentable, they will be developed. This basic belief has been a part of American culture since its founding. It has been expressed by many USPTO directors (starting in 1836). Hence, the third question should be:

3) “Can you convince fence sitters and their lobbyists of the worth and vitality of the patent system for them and their interests?”

Get America investing again!

Next: Support additional legislative efforts to make the USPTO’s Patent Trial and Appeal Board (PTAB) mimic district courts when checking patent validity. This legislation (the PREVAIL Act), vests in the patent holder a similar right to property, with presumed valid, and thresholds for proof, as a district court. This PTAB system has been presented as a faster and less expensive solution than a District Court. Hence, the fourth question:

4) “Can you implement legislation, if passed, to remake the PTAB in the mold of a district court, but with a technical and patent-sophisticated staff?”

Finally: Restore injunctions as a ready remedy for patent holders seeking to enforce their rights. Forced licensing and damage payments turn patent holders into rent collectors rather than owners. The last question you should ask a director candidate is:

5 “Can you articulate the Constitutional imperative that exclusive rights were, are, and remain the correct application of patent system?”

Good luck Howard in making your decision. We all support you, the USPTO and Patent System.