Make Patents Great Again – PTO Speculation: Judge Rader?

Scott Graham of The National Law Journal reports that Chief Judge Rader is in the mix to be the next USPTO Director. Rader wrote hundreds of patent opinions during his 25 years on the Court of Appeals for the Federal Circuit, including four as Chief Judge.  Prior to joining the judiciary, Rader spent eight years as counsel to the Senate Judiciary Committee’s Subcommittee on Patents, Trademarks, and Copyrights.  He is a recipient of the Jefferson Medal for exceptional contributions to the field of intellectual property law.  In a fairly minor scandal, Judge Rader resigned from the bench in 2014.  At that time, I wrote:

Judge Rader is a longtime member of the court and has been a gregarious Chief Judge. His willingness to have frank and open discussions on a variety of patent law issues has been welcomed by the bar as has his work to build ties with patent law authorities from around the globe. Those connections will continue to serve the court well into the future. However, this outgoing approach has also been criticized as contrary to the traditions of judicial detachment and seclusion.

Judge Rader has the patent law and political expertise to do this job — question whether he would really want to run a 10,000 person organization.  Rader likely has strong support from President Pro Tempore of the United States Senate Orin Hatch

In my mind, the other leading candidate is Phil Johnson. The PTO directorship would serve as a capstone to a truly incredible career.   Trump and his team have substantial trademark experience, and so an internal dark-horse candidate is always likely.

Because of her ties to the Obama Administration, I see it as highly unlikely that current PTO director Michelle Lee would be asked to stay-on even temporarily in that position.

PTO Director wears many hats, but I see the primary job as leading the 10,000+ examiners and judges to ensure a high quality work product at a reasonable cost and speed.  Patent and trademark experience are certainly necessary – but I would think it is also important to have experience or understanding of managing such a large workforce of unionized employees.

Congratulations to Harold McElhinny on his retirement from MoFo; he has apparently refused calls from Trump Tower.

 

 

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

70 thoughts on “Make Patents Great Again – PTO Speculation: Judge Rader?

  1. Congratulations to Harold McElhinny…[, who] has apparently refused calls from Trump Tower.

    Same here. He was so impressed with my comments here on this blog that he called to offer me the PTO director’s job. I politely declined, but subtly hinted that I would not be averse to consideration for the SCotUS vacancy.

  2. The ethically challenged Rader would be an obvious choice for the deeply ethically challenged orange maniac.

    On top of that, we’ve got Rader’s incompetence in the area of subject matter eligibility, resulting in massive giveaways to Rader’s friends. That also appears to be in perfect alignment with the swamp-filler elect’s modus operandi.

    1. I agree that he is not an ideal choice for 101 given Bilski, Mayo and Alice. Do you think the Google/Wall Street lobby would sink his ship because of this?

      1. I think what “Google/Wall Street” want is far, far, far less important than what the orange maniac’s bestest buddies want. If Trmp has a bff out there who’s a bigtime patent tr0ll and that bff wants Rader, then Rader it will be.

        Likewise, if Trmp’s bff thinks Rader will really, really tick off some “liberal silicon valley types” then that’s what will matter most to Team Trmp. Ideology and competence, of course, are utterly beside the point in this case, as long as the nominee isn’t remotely “liberal.”

        I really think Team Trmp could care less about what would be best for Google or Wall Street. Google and Wall Street will be just fine in a Trmp Presidency, regardless of whether they are being pecked at by patent attorneys, right up until the point where just about nobody is fine anymore.

      2. I agree that he is not an ideal choice for 101 given Bilski, Mayo and Alice.

        Malcolm appeals to the Ned Windmill Chase, and not surprisingly, Ned flip-flops.

  3. Delassus said: Fundamentally, the problem is that once a patent system is in place, there is no additional law Congress can pass that makes it more rewarding for a U.S. resident to invent. If we are to privilege U.S. innovation over ex-U.S. innovation, we can only do so by making the latter less rewarding. In other words, the result of your policy suggestion is not more U.S. inventions, but rather fewer foreign inventions.

    As I recall, the very early US Patent law – had the implication that a US ‘inventor’ could bring a foreign invention (i suppose a foreign trade secret invention), disclose the invention in a US patent application and claim to be the US inventor – and get a valid patent wherein the foreign invention would not be prior art against the claims of the US ‘inventor.’ In other words, an extreme (by todays standard) pro-invention and pro-patent nationalistic system – which provided direct incentives to bring technology to the US shores and disclose to the US industrial (albeit infant at the time) base. So there is an example of a law that provides extra rewards for US domestic patent ‘inventor.’ I am air quoting ‘inventor’ here because this is not quite the same way we view ‘inventorship’ (I had the eureka in the shower) in the modern era.

    1. Fair enough. That is sort of historically interesting, but of no real relevance to the discussion below. Back at that time, news traveled slowly, so an incentive to bring news of new technologies from foreign shores could materially advance the state of the art in the U.S. Not so any more. If a technology is developed in (e.g.) China, U.S. industry will be aware of it the same day as it is released in China. It might take a while for it to filter to U.S. consumers, but that relates more to the time it takes for U.S. retailers to devise marketing campaigns and the like—not to any delay in the information per se.

      In other words, such a law would have no technology enhancing effects today. Indeed, quite the contrary. If we allowed some lucky first-in-line American to acquire monopoly rents on a foreign technology—a technology that Americans would have received anyway, even without the first-in-line fellow filing on it here—then we simply prevent U.S. consumers from enjoying the consumer surplus that they might otherwise have enjoyed from a new technology in the public domain.

      1. “In other words, such a law would have no technology enhancing effects today. ”

        True, but if we enhanced the lawl to require domestic manufacturing in addition to “importing/translating to English” for the tech then we may well see some MAGAing effects.

        1. Or we could concentrate and support “patent strength” where the patent is being manufactured domestically, by a domestic company employing local human beings.

          As opposed to, say, encouraging foreign companies employing foreign workers to obtain patents that turn people writing decent software in the US into criminals.

          1. MM, why I say! You seem to be coming around.

            It would be interesting if there were a requirement to enforce a patent in the US against US made products or services that the patent owner or a licensee be making the patented invention in the US.

            1. It would be interesting if there were a requirement to enforce a patent in the US against US made products or services that the patent owner or a licensee be making the patented invention in the US.

              That would be interesting indeed. Does anyone know if any large economy has ever tried to enforce such a policy? It sounds plausibly promising in theory, but this is a situation where an ounce of actual experience would be worth a ton of theory, so I would be interested to hear whether such a policy were ever tried.

              I expect that U.S. exporters would not cotton to such a policy, for fear of the knock-on reprisal policies that would emerge in our larger trading partners. Exporters, however, are not such an influential or well-organized bloc that they could likely scuttle such an proposal if it were well supported in other sectors of the economy.

            2. Ned,

              your false flag of Big Corp is showing:

              a requirement to enforce a patent in the US

              against US made products or services

              that the patent owner or a licensee be making the patented invention

              in the US.

              The subtle injection of a “must make” is a ploy of the Efficient Infringer crowd.

              Such a notion does not – and cannot – sit within the US patent jurisprudence.

              1. “The subtle injection of a “must make” is a ploy of the Efficient Infringer crowd.”

                Yes anon but we’re only talking about with respect to patent rights that are being brought in from abroad. Not with respect to the native population’s/native created inventions.

                MAGA!

      2. Back at that time, news traveled slowly, so an incentive to bring news of new technologies from foreign shores could materially advance the state of the art in the U.S.

        Sounds like you want to change some of the fundamentals of US patent law (without really changing them)…

        It all sounds good Greg, when you gloss everything in your (false) “one world order” views…

        Reality is a bit different though.

      3. Delassus, your lack of faith is disturbing. You must be French ; ). Let’s go back to my hypo k?
        1. Assume the invention is something important, like CRISPR-CA9.
        2. It’s discovered and KEPT secret in some non-patent land, like China.
        3. An incentive to bring the invention to the US – the exceptional American experiment – with strong private property patents with a double protected trial right of an independent judiciary and a jury – disclose it and claim it in a patent is strong, IF the statutory scheme, as discussed, was still present.

        1. Good point, IWasThere. I agree that our current law would not allow for that scenario, because the person filing the U.S. application could not honestly claim to be an “inventor” of the claimed technology as we define “invention” in this country. Nevertheless, there is probably a social benefit to allowing the scenario you describe. We would have to amend § 101 to say “[w]hoever: (1) invents or discovers; or (2) discloses a trade secret invented or discovered outside the Unites States which enables the working of, any new and useful…”

          My only hesitation with this gambit is that it essentially amounts to the U.S. placing a bounty on foreign trade secrets. This would essentially flush all of our recent work getting China to agree to treaties against trade secret piracy. Presumably the rest of the world would retaliate by placing bounties on our trade secrets.

          On the other hand, maybe this is not such a bad thing. An international system of bounties on trade secrets would make it harder to keep trade secrets. This in turn would make it more attractive, at the margin, to disclose and patent rather than keep trade secrets, and the extra disclosure would be better for the innovation ecosystem overall.

          In short, I think that yours is a good idea.

  4. Currently the job of PTO director is to keep pumping out crap patents, echoing the system is broken – and the only fix is the AIA IPR star chambers. It’s a feedback loop, that grows the PTO. It will take strong leadership to reverse that momentum.

      1. What makes them crap? The need for PTO to justify the IPR bureaucracy. In other words, without a mountain of dubious patents there is no need for the IPR establishment/power. And, therefore, under public choice theory, because a mountain of bad patents expands the power of the agency, you will almost certainly get it. In fact, if you think about it, the IPR scheme itself, in terms of power/stakes, is MUCH MUCH greater than the issuance of a patent in the first place. Ergo, the PTO, as an entity that seeks power/growth/justification, because that is what organizations do under public choice theory, will fight like heck to preserve that beach head. Thus, the existence of the IPR schema itself, creates the incentive to perpetuate and expand itself, and that incentive is only satiated with a mountain of crap patents. Just look at the exponential growth link to patentlyo.com for your proof. We got the AIA put in effect according to wiki around September 16, 2012?

        1. I think that this is regrettably accurate. Ordinary examiners have a plausibly decent set of incentives, but the PTO as a whole has a terrible set of incentives.

          The PTO needs fees to keep the lights on, and the fee payers want patents, not rejections. The PTO knows this, so the strategy for maximizing fees lies in relaxing the standards for grant, so that as large a percentage of applicants as plausible reach allowance. This way a would-be applicant can believe that there is a plausible chance of reaching grant, so she is willing to pay her money to file her application. There is no incentive for the PTO to apply rigorous standards to applicants.

          On the other hand, the fee payers for the IPR/PGR system are the challengers. Once again, the PTO knows what it is that the fee payers want, so the PTO does its best to give the customers what they want. While the standards for patentability applied by the examiners are generous, the standards applied by the PTAB in IPRs & PGRs are notoriously strict.

          In other words, a profit maximizing entity in the PTO’s situation would be generous in granting patents to applicants, but harsh in its approach to those same patents when they are reviewed in IPRs & PGRs. Distressingly, but perhaps not surprisingly, this is frequently what we observe. The degree of generosity or harshness seems to change according to the party in control of the White House, but the basic dynamic of easy grant/harsh review is a constant.

          I wish I knew a way to make the PTO’s incentive structure different, to improve on this untoward outcome, but I cannot. Short of switching to a pure registration system, I cannot think of how to change the incentives, and I think a pure registration system would be even worse.

          1. There is no incentive for the PTO to apply rigorous standards to applicants.

            FAR too narrow of a view, Greg.

            Anyone worth their salt realizes that merely obtaining a grant is not enough – what is needed rather is an enforceable grant.

          2. …and as I have always stated: rubber stamping of either Reject Reject Reject or Accept Accept Accept is not what the job of the Office is.

            Do the Fn job, Office….

  5. Unless the next director makes public all the documents associated with SAWS, 2nd Look, and similar unlawful secret internal USPTO “quality assurance” programs, the USPTO will remain broken.

    So far in analyzing public USPTO and District Court documents, I find evidence:

    of breach of implicit contract in fact to carry out a genuine examine upon applicant’s payment of fees;

    of numerous criminal violations of 18 USC 1001 (document falsification) & 18 USC 371 (criminal conspiracy); and

    of subordination of perjury in the District Court in USPTO experts’ testimony and reports.

    The magnitude of the crimes and of the numbers of USPTO employees (including high ranking USPTO officials) involved makes me suspect large pay-off either in money or in some other medium of exchange.

    When the scandal finally breaks, we will probably find corruption that is bigger than Teapot Dome, Watergate, Iran-Contra, AIPAC (Franklin, Rosen, Weissman), and the Valerie Plame Leak all combined together.

    1. Greg, other than that these two gentlemen appear to be competent patent lawyers and have prior experience in the USPTO, I have no idea how they stand on IPRs in the AIA or anything else.

      If you could help us on this, I would deeply appreciate it.

      1. Sorry, Ned, but other than the fact that Hal Wegner mentioned these two as names that he has heard are in the running, I know almost nothing about them. Pinkos used to work at a fairly senior level in the PTO during the second George W. Bush term. McKeon is a partner with Fish & Richardson. I am not aware of any writings or public remarks by either of them on the subject of the AIA.

  6. As long as we get Rader sorted out about the whole appearance of bias thing I think he’ll be ok. Someone really needs to walk him through that, though I guess he may not have quite so high a bar as a director.

  7. The fact that Judge Rader said that IPRs had become “death squads” warms the heart. I think the choice of the next director more depends upon his or her attitude about IPRs and the patent system, i.e. whether recognizing that patents are valuable property and deserve the same due process is recorded any other property, is the most critical criteria for choosing the next director.

    I would also hope that the next director recognizes that the entire purpose of the United States patent system is to promote invention in the United States and that removing the advantages for invention in the United States provided by the AIA in earlier statutes was wrongheaded.

    What we need, and I hope the next director would agree, is to restore a strong grace period that favors American invention while still providing that the first to file and claim the same invention prevails that we might eliminate interferences.

    There are numerous other things wrong with the AIA that need fixing, including universal prior art, keeping patent applications is prior art for obviousness purposes, recognizing filing date foreign applications as prior art, etc. etc. etc.

    Anybody who strongly favors undoing the AIA in any way will be strongly opposed by the efficient infringer lobby and by the likes of the IPO and by the AIPLA, who by in large, gave us harmonization. The degree of opposition from this direction should be a measure of his or her merit.

    The bottom line, I think Judge Rader might be an excellent choice.

    1. The fact that Judge Rader said that IPRs had become “death squads” warms the heart. I think the choice of the next director more depends upon his or her attitude about IPRs and the patent system…

      This is a very good point. The Director appoints the PTAB, so if the next director has in mind to scale back the “death squad” aspect of the PTAB, that would be a very significant change.

      I would also hope that the next director recognizes that the entire purpose of the United States patent system is to promote invention in the United States… [emphases added]

      I strongly disagree. First, there is no textual justification in either the constitution or the statute to indicate that this is the “entire purpose” of the U.S. patent system. Second, it is a good thing that no such wrongheaded purpose is expressed. We should want to incentivize innovation, but we should be indifferent to the question of where that innovation happens.

      If a clever Italian working in Milan should invent a cheaper or less toxic cancer therapy, I will bless him for it and so will millions of other Americans. You will be able to count on one hand the number of cancer patients or their family members who will say “I will not have that therapy. It was invented by a foreigner.”

      What we need, and I hope the next director would agree, is to restore a strong grace period that favors American invention while still providing that the first to file and claim the same invention prevails that we might eliminate interferences.

      What does it matter if the Director does agree with that policy preference? This is not a matter in the Director’s control. You should wish for a Senate Judiciary Committee chair with this preference, or a Speaker of the House with this preference. The Director does not make the law.

      There are numerous other things wrong with the AIA that need fixing, including universal prior art, keeping patent applications is prior art for obviousness purposes, recognizing filing date foreign applications as prior art, etc. etc. etc.

      Translation: the best way to “fix” the AIA is to repeal it root and branch.

      Perhaps. I disagree, but not strongly. Really though, it is pointless to vent these preferences in a discussion about the next PTO director. None of these points are matters within the director’s discretion.

      1. Greg, nothing will pass Congress unless supported by the administration. This is plain and simple. That is why the next director must be on board policy wise with fixing the AIA to the extent it needs fixing.

        Regarding the purpose of the American patent system, certainly it was not intended to secure patents on inventions made outside United States so that the manufacturers abroad might protect American markets against domestic competition. We fought a revolution because the English controlled access to American markets through a patent to the British East Indies Company. It is very unlikely that the colonies would have even considered a patent system were it to understand that it would effectively authorized the English to protect American markets for English manufactured goods.

        There is no doubt in my mind that the purpose of the American patent system was to promote invention in the United States. To this end, the Patent Act of 1793 allowed only American citizens obtain patents. This notion is entirely inconsistent with your idea that the founders intended that the purpose of the American patent system was promote invention everywhere in the world.

        1. It is very unlikely that the colonies would have even considered a patent system were it to understand that it would effectively authorized the English to protect American markets for English manufactured goods.

          I am sure you are right about this, because Mercantilism was still all the rage back in the 18th century. Still and all, we know better now. We are not obliged to make the same mistakes as our colonial forebears, merely because they held these mistaken ideas at the time that they wrote our constitution.

          If the framers had inserted such a Mercantilist preference for domestic invention into the constitution, I would have to concede your point. As it happens, however, they did not.

          This notion is entirely inconsistent with your idea that the founders intended that the purpose of the American patent system was promote invention everywhere in the world.

          The founders’ personal preferences are irrelevant. What matters is the text that was actually adopted in the constitution. No such preference for domestic invention was expressed in the constitutional text.

          1. Greg, “Paul Samuelson, writing within a Keynesian framework, wrote of mercantilism, “With employment less than full and Net National Product suboptimal, all the debunked mercantilist arguments turn out to be valid.”

            “In an essay appearing in the 14 May 2007 issue of Newsweek, business columnist Robert J. Samuelson wrote that China was pursuing an essentially neo-mercantilist trade policy that threatened to undermine the post–World War II international economic structure.”

            link to en.wikipedia.org

            Greg, I think it is self-evident that free trade works best between two countries similarly developed. In this circumstance, efficiency determines the location of farming, mining, manufacturing and the like. When two countries do not have similar developmental structures, such as the United States in 1789 versus England, allowing England free importation of its manufactured products into the United States would have massively retarded the ability of American manufacturers to get off the ground. Adding insult to injury, protecting English imports with patents originated in England would have exasperated the problem enormously.

            I think there is no doubt that America pursued its own mercantilist policies for very long time until our own manufacturing became dominant. At that time, we began to favor three trade in order to open markets abroad for our manufacturers.

            I think it is somewhat obvious to anybody who actually considers the realities of the situation for more than just a few moments that uniform policies that favor free trade and no borders is not uniformly in America’s interests. China is one of those examples. Mexico is another.

            1. [I]n 1789… allowing England free importation of its manufactured products into the United States would have massively retarded the ability of American manufacturers to get off the ground. Adding insult to injury, protecting English imports with patents originated in England would have exasperated the problem enormously.

              Fair enough, I agree with this. That is a good argument for why U.S. patent law should have favored domestic invention back then. It is less clear to me that it implies that we should favor domestic invention over foreign invention today.

              I think it is somewhat obvious to anybody who actually considers the realities of the situation for more than just a few moments that uniform policies that favor free trade and no borders is not uniformly in America’s interests. China is one of those examples. Mexico is another.

              I disagree. I have considered the situation of both Mexico and China for more than a few moments, and I think that free trade with both of them is and long has been a net benefit to the United States and her citizens. That is as much as I will say on the matter, however. I do not wish to derail the discussion from patents onto trade more generally.

              Let us set aside irrelevant distractions like what Dr. Samuelson had to say about Mercantilism or whether we should have agreed to trade agreements with China, and stick to the subject of patents. Why should Americans care more about incentivizing innovation here than abroad.

              Do medicines developed abroad work less well than U.S. medicines? The example of penicillin would suggest not.

              Do Americans enjoy foreign-invented electronics less than domestic-invented electronics? The Sony Walkman would suggest not?

              Do American businesses suffer from using foreign machines, but benefit from American machines? One would not know it, to see the number of machines that U.S. factories buy from Siemens. How many fewer U.S. factory jobs would there still be, were it not for such machines?

              Americans benefit from innovation—full stop. We want innovation from whatever source, domestic or foreign. If we reduce the returns to innovation outside the U.S., we cut off our own noses to spite some foreigner’s face. Why bother?

              1. Your non-sovereign views Greg are more than just a bit Polly Anna.

                Until there is a “one world” political state, it matters very much where the details of trade and innovation come down.

                To so blissfully dismiss these things is to profess not only ig norance, but a deep carelessness that boggles the mind.

              2. Greg, we either invent, make and sell, or we buy. How do we pay for what we buy? Sell oil? Sell food?

                No, Greg. America became great because America invented, made and sold. Keep that in mind.

                1. Fundamentally, the problem is that once a patent system is in place, there is no additional law Congress can pass that makes it more rewarding for a U.S. resident to invent. If we are to privilege U.S. innovation over ex-U.S. innovation, we can only do so by making the latter less rewarding. In other words, the result of your policy suggestion is not more U.S. inventions, but rather fewer foreign inventions.

                  Innovation begets further innovation. If we reduce the returns to foreign inventions, then we can expect fewer of them. This results in fewer innovations on which U.S. inventors can build.

                  Nobody gains from your suggestion. Everyone loses.

                2. Greg,

                  You remain Polly Anna and presume no other effects of the innovation.

                  So while you are correct that innovation begets innovation, there remain sovereign effects to innovation from different sovereigns.

                  You want to pretend that some “one world order” already exists in your pretending that sovereign effects are absent from reality and that is just not so.

                3. Greg, I agree with anon. This is not a zero sum game from America’s point of view. It might be from a planet earth point of view where every place on earth is just like every other place on earth. But that day, if ever it comes, is millennia in the future. Until then, we have to make sure that the US is strong in order to keep us all safe; and to do that we must be economically strong. Economic strength is the same as potential military strength. Military strength in the hands of America has historically meant peace on earth. Unfortunately, we have had a tendency to intervene in other peoples wars recently, from Kuwait, to Iraq, to Libya, to Syria; all the while getting us deeper and deeper into a quagmire.

                  We did not learn anything from Vietnam, it seems.

                4. This is not a zero sum game from America’s point of view.

                  This is a rather strange response. I am not the one whose argument depends on a zero-sum understanding of innovation. You are.

                  You are telling a story where there is only so much innovation in the world, and the goal of the U.S. patent system is to see that as large a piece of that finite pie is served to U.S. inventors.

                  I am telling a story in which there is no limit to innovation. One inventor builds on another’s work, and therefore innovation made abroad takes nothing away from America’s domestic innovation.

                  America has a lot of coal. If we had to dig that coal out by hand (as once we did), then the value of that resource is diminished and the rate of its extraction constrained by the enormous human effort necessary. If some German invents a machine that can extract this coal more efficiently than human miners do, then we get more coal, more cheaply. That is economic growth. Of course the same outcome would obtain if the machine were invented by an American, but that is just my point—America’s economy grows when new technologies are introduced, and it does not matter whether those technologies are invented here or abroad.

                  Similarly, if one in ten Floridian babies die of some tropical disease, that is a major drag on the economy (fewer working age adults in each age cohort, and more time spent tending sick children instead of growing crops or building houses, or whatever other productive effort is foregone). If a Mexican inventor discovers a cheap and reliable vaccine against that disease, then Florida’s economy grows accordingly. Once again, the story would be equally true if it were a Texas inventor, but that is just the point. It does not matter from where the invention comes. Its benefits flow across borders.

                  It is in America’s own sovereign interest to give liberal encouragement to innovation world wide.

                  Incidentally, if we really do mean to try (the crabbed and counterproductive) strategy of confining as large a percentage of all innovation as possible within our own borders, someone needs to tell Mr. Trump that the immigration system needs to accommodate that goal. To have all innovation in this country requires that we have all people with inventive talent in this country, which means more H1B visas. Mr. Trump and Sen. Sessions want fewer H1B visas. That is a problem if we mean to (waste our time on a counterproductive effort to) increase the relative proportion of invention that occurs within our borders.

                5. Fundamentally, the problem is that once a patent system is in place, there is no additional law Congress can pass that makes it more rewarding for a U.S. resident to invent.

                  To be more clear, I should say that there is no additional patent-based law that Congress can use. Congress could pour more federal funds into R&D, or create contests with large cash prizes to the first entity to bring X technology to market. These would provide additional incentive to technological development, but the incentive would not be a patent-law incentive.

                6. You are telling a story where there is only so much innovation in the world, and the goal of the U.S. patent system is to see that as large a piece of that finite pie is served to U.S. inventors.

                  I am telling a story in which there is no limit to innovation. One inventor builds on another’s work, and therefore innovation made abroad takes nothing away from America’s domestic innovation.

                  Both falsehoods.

                  Or to be less kind, both are half-truths (something worse than outright falsehood).

                  First, Ned is NOT telling a story so constrained as to ONLY innovation within the US. His story is rewarding US innovation in the US. Huge difference.

                  Second, as you have been doing throughout the topic, you omit sovereign effects in your “story.” It is NOT that Americans cannot “build upon” foreign innovation. It is that you continue to think that there are zero transnational effects (a world-frictionless state that does NOT exist).

                  I “get” that you refuse to respond to me – such is your choice – but please, don’t pretend that you do not understand the error in your other choice of a far too simplistic view of nation-to-nation political jockeying.

                  Innovation may indeed by “limitless,” but that surely does not mean that it is frictionless.

                1. The idea that the United States has—at any time since ~1860—ever ceased to be “great” strikes me as absurd on its face. Therefore, I cannot see my way clear to the idea of making America great “again” (as if we are not presently a great nation).

                  I am, however, all in favor of American greatness. If we want to make America even more great, I am totally on board.

                  My objection to the idea of favoring domestic innovation over foreign innovation is that policies to advance this goal will make America less great. Those advancing this idea probably have their hearts in the right place, but the universe does not award gold stars for good intentions. Bad public policy produces bad results, regardless of intentions.

      2. We should want to incentivize innovation, but we should be indifferent to the question of where that innovation happens.

        Absolutely disagree, Greg.

        Patent law has always been sovereign-centric.

        It is only with treaties and trying to gain “equal footing” in other sovereigns did we introduce the notion of trans-nationalism.

        That notion of trans-nationalism is a p0is0n and a blight, mainly because the entities that take advantage of trans-nationalism are simply not beholding to ANY sovereign, and influence the sovereign-centric nature of patent law to their non-sovereign benefit.

      3. “I strongly disagree. First, there is no textual justification in either the constitution or the statute to indicate that this is the “entire purpose” of the U.S. patent system. Second, it is a good thing that no such wrongheaded purpose is expressed. We should want to incentivize innovation, but we should be indifferent to the question of where that innovation happens.”

        Leave it to a democrat to advocate the giving away of exclusive rights in the US to promote innovation in other countries. Greg wants to make ROW great again. #mindblown #MAGAinstead

        Why not just give the whole country away to some foreign power while we’re at it? I mean, who really cares about owning things or having a country?

        Also I note that greg’s comment is yet another reason why we really need to look into adjusting congresscritter’s and every other public servant’s oaths of office.

        1. Is this an elaborate piece of performance art? If so, I tip my hat to you, sir. It is masterfully done.

          Where I come from, we strain our voices and raise our eyebrows when we mean to be sarcastic. I have never really learned how to recognize irony in written text. You will please forgive my unseemly density, therefore, if there is a degree of irony in this response that I am missing.

          1. It is somewhat sarcastic sure, but in all realness brosef, you have to remember what gets “given away” in “reward” for the disclosure of innovation in the US system. Those exclusive rights (closely akin to what many used to call a “monopoly”) come all too often with $$$ attached.

            I really did take from your comment way above to which I responded that you seemed to be super in favor of handing out exclusive rights in the US for innovations made elsewhere literally with the express purpose of spurring innovation in other countries. If that wasn’t your point then I must have been mistaken.

          2. . I have never really learned how to recognize irony in written text.

            LOL – and when others are more forceful due to the limitations of written words on a blog, you simply dismiss them and pay them no heed.

            How awfully nice to live in that type of self-induced bubble…

            (and yes, there is a – s a r c a s m – sign being held up with that “nice”)

  8. Judge Rader taking on the role of Director Rader would be much akin to Justice Abe Fortas, after he resigned from the SCotUS and returned to work as an appellate litigator arguing in front of his former colleagues. It would almost be the stuff of a novel.

    Incidentally, didn’t I just read that Judge Rader has accepted a job in a Chinese law school? How is that going to work alongside a gig as head of the PTO? The director’s job is quite demanding. I do not see a lot of time left over for jetting to China to give regular lectures.

    1. “Judge Rader has accepted a job in a Chinese law school?”

      That’s almost comical.

      But I’m sure he just took the job to make $$$, nothing is confirmed for him getting the nomination.

  9. >>Because of her ties to the Obama Administration

    Nothing to do with her Google ties and her anti-patent judicial activist positions?

    1. The interesting thing will be to watch her career post USPTO to see how Google slips her $20 million for her service to Google at the USPTO.

  10. “Top US Patent Judge Resigns In Email Ethics Violation.”

    Yup. That sure fits Trump’s Drain The Swamp agenda. Are you sure they aren’t considering Rader for prison Rather than PTO?

    1. Owen…you wouldn’t be the guy who used to write the patenthawk blog, would you? You know, the guy who made fun of everybody else until his own patent was declared invalid and he was exposed as a troll?

      In any event, Judge Rader’s mistake was sending an email to a lawyer who often appeared before the CAFC, praising that lawyer’s professionalism. Hardly a major ethics slip, and not one that necessitated his retiring, an act he undertook voluntarily. As a judge, he was one of the few on the CAFC who consistently got things right. His retirement couldn’t have come at a worse time, as he would have undoubtedly worked to limit the effects of Myriad/Mayo/Alice. (It’s difficult to see the Sequenom decision coming from a panel with Judge Rader on it.)

      I don’t know if he would make a good PTO head, but that’s only because, as Dennis points out, it’s a 10,000-employee organization, and running such an organization may not be his strong suit. It’s got nothing to do with his IP bona fides.

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