Transitions: Andrei Iancu

Patent

by Dennis Crouch

Former USPTO Director Andrei Iancu has returned to private practice — back at his Southern California firm Irell & Manella. Iancu had been managing partner of the firm before being nominated by President Trump to lead the Patent Office.

Congratulations to Dir. Iancu on navigating the tricky political waters of Washington DC these past several years.  I hope that Iancu’s measured success during rather extreme times will encourage others to step-up as well.

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40 thoughts on “Transitions: Andrei Iancu”

  1. 3

    Just curious – who do folks think is the top USPTO Director that the agency has had that benefitted the agency or inventors? Just wondering where Iancu, Michelle Lee, and Jon Dudas rank in people’s minds…

  2. 2

    Dennis wants to censor it but it is true that despite the fact that probably 80 percent of patent attorneys would like to see Andrei Iancu on the CAFC that under the current political environment his skin color and sex preclude him from an appointment.

    Seems very odd to me that we can’t talk about reality.

    1. 2.1

      In fact, Newman has written opinions that make it clear that cabining 101 is easy and with Andrei Iancu on the CAFC the two of them could probably clean up most of the problems in patent law.

      But……it is not to be. And we can’t even talk about why it can’t be or we are censored.

    2. 2.2

      Does not fit the desired narrative.

      Some actually believe that there is no such thing as Rac ISM against white people.

      We’ve even had the 1984-ish rewriting of dictionaries to change the defined term to include an element of power.

      Unfortunately (for the Left), they may need to further refine that change, as the Left are now in power, and per their own changed dictionary, conservative whites can be the “victim**” of Rac ISM.

      ** for those enamored with the “I’m a victim” game.

    3. 2.3

      A) Its not censorship. Dennis is not the government. As the owner of Patently-O, he has an absolute right to moderate which content he wants to associated with. You don’t like it, scram. I know you are using the term colloquially, but this is a blog about legal matters, let’s be more precise.

      B) Has there ever been a PTO Director -> CAFC transition? Especially when the director served under a previous administration? This is an honest question, I don’t know.

      c) Please cite your sources that a nomination of Mr. Iancu would supported by 80% of patent attorneys. I think he is rather benign. The 101 guidance that came out during his tenure was obviously flawed. Anyone that was familiar with 101 jurisprudence knew, the day it came out, and with each update, that it was not a good faith reflection of what the law is. Otherwise, his tenure was fairy unremarkable.

      D) To someone used to privilege, equality feels like oppression.

      1. 2.3.1

        Hilarious that you of all people want more “proper” legal terminology and less colloquialism.

      2. 2.3.2

        A) Duh.

        B) Not sure.

        C) I guessed at 80% anecdotal evidence. Only those that are anti-patent didn’t like or understand the 101 guidance.

        D) Nonsensical.

          1. 2.3.2.1.1

            Lol, classifying my A statement as whining is a classic example of what I have dubbed “A-nonsense.” It was, in fact, NW that was whining. But it was all rather tongue and cheek. I’ll admit, though NW and I sometimes have had testy interactions, he has said stuff that at least makes me think about a different point of view.

            Given out previous interactions, its no surprise you would like it is nonsense because your world view depends on it being nonsense.

            1. 2.3.2.1.1.1

              YOU also were whining.

              Clearly.

              My pointing out that YOU were whining is not material to whether or not Night Writer was whining.

              THIS would be grasped by you if you were not so busy whining.

            2. 2.3.2.1.1.2

              Your D) is nonsense regardless of any world view that I may have – and so based AT LEAST on a proper application of your desired A).

        2. 2.3.2.2

          Only those that are anti-patent didn’t like or understand the 101 guidance.

          This is conflating two issues. First, you can understand the 101 guidance as trying to put together a workable framework for reconciling a confusing, and sometimes often contradictory, body of law. Second, you can acknowledge that the 101 guidance is not a good faith reflection of what the law actually is.

          Personally, I liked the idea behind the 101 guidance. However, as bore out repeatedly now at the CAFC, the guidance obviously does not reflect the law. One can argue that it is an incremental step towards what the law should be. Maybe Mr. Iancu should run for elected office.

          1. 2.3.2.2.1

            love the strikethrough – what is the ‘tag’ for doing that?

            And I agree with the strikethrough – this plays to my meme of Gordian Knot, and the fact that high ranking members of all three branches of the government have noted that Gordian Knot.

            The item to remember about that guidance and “reflecting the law” is that BECAUSE OF THAT Gordian Knot (and STILL panel dependent), any guidance is simply not possible to ‘reflect the law.’

            This is LESS a failure of the guidance and MORE a reflection that the currently Justice and Judge written law CANNOT be followed (consistently).

            What the law “should be’ IS already out there: it is the Supreme Court that has mucked it up.

            And I will remind you that the Supreme Court already has the tool to cut that Gordian Knot: the Kavanaugh Scissors.

    4. 2.4

      “Dennis wants to censor it”

      Then he appears to be doing a pretty bad job of it.

      “under the current political environment his skin color and sex preclude him from an appointment”

      If we were a asexual species of homogenous melanin, Iancu would still not be receiving a CAFC appointment due to his prior appointment by, and playing for, the other team.

      Remember this from less than a week prior to the election?

      “Just a reminder, under President Trump’s leadership, the U.S. intellectual property ecosystem ranks #1 in the world, according to the 2020 International IP Index.” – Andrei Iancu, Director of the USPTO

      1. 2.4.1

        This ^ is most definitely a part of the problem and exemplifies a pure tribal, totally polarized and unsustainable “Us-Them” that has ZERO place in evaluating who may be “best for” a highly specialized judicial position.

        1. 2.4.1.1

          Actually, if you want to know how ridiculous the “woke” are consider this.

          From 2001 to 2021 the percentage of black people elected to the House and Senate doubled so that now 12 % of the people in the House and Senate are black people—the same percentage as in the general population.

          Yet listening to the “woke” you would think that there was great progress or that black people were under represented.

          And, for the president and vice president we now have 50% white with 70% of population; 25 % black with 12% of population; and, 25% Asian with 6% of the population.

          So, the “woke” are really neo-Marxists that are very dangerous and don’t care about facts.

          2. 2.4.1.1.2

            “And, for the president and vice president we now have 50% white with 70% of population; 25 % black with 12% of population; and, 25% Asian with 6% of the population.”

            Why is it that people think the best response to bad analysis is more bad analysis?

            1. 2.4.1.1.2.1

              Why do you think that your view of what constitutes “bad analysis” has any weight?

            2. 2.4.1.1.2.2

              So, Ben rather than addressing any substance and not even bothering to see my analysis was done just to provide a complete picture tries to criticize what I did rather than address the absurdity of the “woke” claiming that black people have no representation when they are actually over represented or fairly represented by percentages in the Executive branch, legislative branch, and the Scotus.

              1. 2.4.1.1.2.2.1

                So you think your analysis is good?

                Do you stand by that analysis as of 2019 when the executive, per your analysis, was 0% black? Was that indicative of a problem?

                Come on NW. You’re better than this.

            3. 2.4.1.1.2.3

              And Ben does not even address the tremendous progress between 2001 and 2021 when the narrative from the “woke” is that no progress has been made or it has regressed under Trump.

              1. 2.4.1.1.2.3.1

                I find it extremely regrettable that a substantial faction of my side generally downplays the progress of the last 60s years.

                It’s not something I agree with and I don’t care to defend it.

                1. …

                  Ben <<"my side"

                  That's the whole ball of wax there, isn't it? The "woke" trying to claim social equality and a just society.

                  I am a liberal democrat and have been for many, many years. I reject CRT and the "woke" culture. And I don't think "my side" are liberal democrats but neo-Marxists that are dangerous.

                  Get it?

                2. …

                  “The “woke” trying to claim social equality equity and a just society.”

                  It has become very much a Desired Ends no matter the Means.

                  VERY MUCH reminiscent of from each according to their ability, to each according to their need.

                  The NEW “victim” class is not the worker, but the latest (and competing for ‘most’) victim of intersectionality and identity politics.

          3. 2.4.1.1.3

            “that are very dangerous and don’t care about facts.”

            facts – like ‘math’ that does not conform to the desired narrative is nothing more than Rac ISM (or the ISM of your choice).

            ALL of this is more than explained in the detailed discussions of Neo-Liberalism.

              1. 2.4.1.1.3.1.1

                … and other ISMs (see intersectionality and the ‘race’ to being the MOST victim…

  3. 1

    Luckily patent policy does not have a built-in or durable political axis- neither left nor right, conservative nor liberal. The CAFC is a federal court and the USPTO is an executive agency, so some politics are inescapable, but they aren’t durable.

    In this area of public policy, at least, the drivers still remain some notion of the public good, rather than the purposes of the elites who control the institutions. A rare thing these days.

    1. 1.1

      “the drivers still remain some notion of the public good, rather than the purposes of the elites who control the institutions”

      Funny how closely those two things appear to have aligned for Mr. Iancu. I wonder if the next director will see the “public good” being facilitated by implementing their opinions of 101 across the PTO.

      1. 1.1.1

        101 is/was a big, mandatory policy choice that could not be accomplished by Congress, the Supreme Court, the CAFC, or the district courts in a cohesive way, so its been done in a non-cohesive way. The new Director and new CAFC justice will absolutely have their own ideas about that choice and seek, more or less, to implement them. Until the policy decision is made in a cohesive way, it will continue to develop ad hoc.

        It is/was a mandatory policy change because the information age is something real, that happened, and the patent laws and judicial doctrines relating to information content in inventions and claims was not suitable to that reality. It’s still not.

        1. 1.1.1.1

          There is quite the difference between proper development of Statutory Law (especially Patent Law – an area clearly demarcated in the bedrock of the Constitution), and the sense of ad hoc development that you note.

          All attorneys should be aghast at this.

          Your version of “not suitable” is of course false. And as written, and dealing with the unknowable future of innovation, the law IS clear as to be being a welcoming WIDE gate.

          It is the Supreme Court that has thrust their Ends-driven, legislating-from-the-bench fingers into the nose of wax of eligibility law that has caused the problems — not the nature of the Kondratiev fifth wave.

    2. 1.2

      I “get” what you are saying and do not disagree with the thrust of your larger point.

      However, I will entirely disagree with you that the notion of politics has somehow NOT infected things.

      Sure, Director Iancu acquitted himself admirably – but certainly the same cannot be said for Director Lee. And with Biden back in a “humorously” ironic manner of being more in charge, but far less (cognitively) capable, the reversion back to a (even-short term) “Lee” state poses a very real detriment.

      These Extreme Orwellian times already see attacks on strong patent rights from what I have (admittedly loosely) coined as from the Left and from the Right, and those attacks have NOT diminished with the swing of my-coined ‘Right’ playing on the side of the far Left.

      I truly doubt that your perception of “public good” has any real traction in the current power play between the “D’s” and “R’s” (even as the term is likely to be bandied about by both sides).

      1. 1.2.1

        Lee did the bidding of the network effect companies and made sure the PTAB was implemented to ‘destroy all patents.’ To be sure, she had the advantage of writing the original rules for PTAB. Iancu, did an admirable job of reforming PTAB by getting them off BRC (a 100% patent killer) and back on the law of claim construction for issued patents. I just wish he had let the other shoe drop and forced PTAB to accord comity and the traditional administrative estoppel to issues already litigated by the Art III department.

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