Patents and the Future of USPTO during Trump’s Second term
This week on IPWatchdog Unleashed we enter the world of innovation politics with a discussion about what to expect for the patent world during President Trump’s second term, what to specifically expect from the Patent Office, what to expect in Congress relating to the patent reform bills that we can expect to be reintroduced, which are namely PREVAIL, which relates to reforming the Patent Trial and Appeal Board (PTAB), the Patent Eligibility Restoration Act (PERA), which relates to reforming the law on patent eligibility to make it easier to patent software–including artificial intelligence–and to make medical diagnostics patentable again, and RESTORE, which relates to overruling the Supreme Court’s 2006 decision in eBay v. MercExchange, which has made it virtually impossible to obtain injunctive relief even when patent owners win and prove ongoing infringement.
The conversation that you will hear happened at the annual IPWatchdog PTAB Masters(tm) program, which was held at the end of January at IPWatchdog Studios. The panelists included Chief Judge Paul Michel, a former Chief Judge of United States Court of Appeals Federal Circuit and former Director of Patent Office under President Obama’s second term. David Kappos was a partner at Cravath, and a former director of the Patent Office in President Obama’s first year. Chris Israel is a senior associate at American Continental Group, and served as the first U.S. International IP Enforcement Coordinator during the George W. Bush White House. Scott McKeown is also a shareholder of Wolf Greenfield, and was the Chair of the PTAB Program. Chris Israel, who opened the discussion, said: “I think you feel a new intensity with this administration.” “I know it’s super macro, and we’re talking about IP and Patents, but I think we need to understand the space we’re in and how many other issues of such importance are moving at the exact same time. “All of that is competing for attention… all moving at Mach 10 in that space.” “One of them is that we need to support the PTO. We all need to be on Team PTO. And that means basic things like fee divert. We don’t want this to creep back into our world. This means dealing with basic things such as backlogs and pending cases. The other thing we will not change is the need for PTAB reform. This is the PREVAIL Act.”
“For the first time since I can remember, we have people coming in on cabinet level and calling it uber-cabinet who at least believe they know something about the patent system,” Kappos explained. “This is going to create an entirely new dialogue and dynamic that I have never seen before.” I don’t remember when there’s ever been a Secretary of Commerce who would claim to know anything about patents or really anyone else at the top of the Administration.”
“Well, it’s very hard to make predictions, so I won’t try to do that,” said Chief Judge Michel. “Let’s just set a little baseline, because I’m soon going to be very critical about some aspects of PTAB. I do support the AIA. It was needed. Overall, I thought it was very good. It was implemented as best as it could have been, given the design flaws embedded in the IPR proceedings within the statute. I am in favor of PTAB. I think it’s doing an excellent job. It is a necessary job. “I think the overall situation for our innovation engine in the country is that the courts have unintentionally created a big mess.”
The patent profession will have to save the country’s innovative machine by influencing Congress and by correcting errant assumptions by the incoming powers,” explained the Chief Judge Michel. “It’s on you all, the patent community to help clean up this mess.” I think it is possible. I think it will happen. It won’t come easy and won’t happen without everyone getting involved, even in uncomfortable ways. There will need to be a great deal of lobbying to educate members and staffers on Capitol Hill about the reforms Dave Kappos mentioned. I support all of them a thousand-percent, and I’d even add a couple more, but that’s not what I want to do right now. It’s a period of great opportunity, but also of great danger. “I will make some very brief opening remarks,” I told the panel and audience at the program. “I almost can’t imagine I’m going to say this, because I have written so many times about how an atrocity it is that there are a million or more backlogs. But what difference does it really make?” What difference does it make? I ask, because I don’t believe patents are worth much in the U.S. This is a sad comment for many reasons. I don’t really know what to do with that. I hope that
Coke Stewart, and whoever ends up as the Director, can fix this system from the top down, but if they can’t, then the least of our worries is a backlog that prevents people from getting patents.”
And so our conversation began. We then discussed the likely reintroductions of PREVAIL and PERA as well as the chances of getting patent reform in this Congress, which no one thought was very probable unless President Trump himself stepped up and made it a priority. We also discuss the “helter skelter” nature, where the pieces do not fit together and don’t integrate. This leads to low predictability and a reality that does not encourage investment in innovation. We also discuss what it will mean to have the Administrative Patent Judges of the PTAB ordered back to their Office and how that will affect the number of petitions that can be filed against patents. We also discuss how antitrust enforcement wouldn’t be necessary if we had a patent system that allowed young companies to compete fairly on innovation merit. Elon Musk was almost right when he said that patents were for the weak – although Chris Israel suggested that it would make more logical sense to say “patents were for the young”. You can listen to the full discussion on IPWatchdog Unleashed at IPWatchdog.com or wherever you get podcasts. You can also view the video below or on the IPWatchdog channel on YouTube.
