by Dennis Crouch
This week, the New York Times published a lengthy staff editorial negatively focusing on the U.S. patent office as a “backwater” used for corporate gamesmanship, won-over by “legal trickery,” and undermining innovation whenever possible. It appears primarily a hit piece designed to destabilize and direct Dir. Kathi Vidal’s initial weeks as USPTO Director. She will be having to defend and explain any pro-patentee stance to her White House colleagues.
Despite musty rhetoric, the high level suggestions have merit – especially the first: “Enforce existing standards.” At its heart, the USPTO is a bureaucratic construct that needs constant attention to ensure that every examiner plays their role, and that none are lulled into complacency. “The best way to ensure that patents spur innovation instead of thwarting it is to set a high standard for what deserves patent protection in the first place and then to honor it.” Dir. Vidal’s primary role in managing a 10,000+ person agency is to ensure that her examiners have the tools , the training, and the time needed to ensure the highest quality examination. Although primary examiners have more training and experience, there is some evidence that they do a poorer job of ensuring that each allowed claim is patentable. This may be an issue of time, oversight, or something else.
The editorial’s second suggestion is to “improve the process for challenging bad patents.” In particular, the editorial calls for eliminating the FINTIV discretionary denials of IPRs implemented under Dir. Andrei Iancu. The bigger suggestions though are as follows: (1) Make it easier to challenge bad patents before they are granted. (2) Force secondary pharmaceutical patents to undergo an automatic review by the appeal board. (3) Rethink the legal structure for patent challenges. As part of this third point—restructuring the legal system—the essay attacks the Federal Circuit as merely an “echo chamber” of the pro patent lobby. For this point, the editorial quotes Matthew Lane of CAPA.
The third suggestion calls for calling for elimination of potential conflicts of interest. This seems to be primarily (and expressly) a pot-shot at Dir. Iancu who rejoined his old law firm after leaving the Office last year. The essay implies that Iancu acted unethically and improperly, but without presenting any evidence and in a way that feels gross. The PTO does not have the same revolving-door tradition that is seen in other major regulatory agencies, and so this complaint would not have made my top-three.
Four: Collaborate with other agencies. Most particularly, the USPTO and FDA need to get together and ensure consistency across the board. To get PTO approval, you need to show your invention is a major change, but for FDA or EPA approval, you want to show that your product is pretty much the same as what we already know and trust. These are all good points here made by Charles Duan who is a member of PPAC.
The final suggestion in the essay – “let the public participate.” Yes!