02.06.17

Questions Arise About Patent Policy and the Patent Trial and Appeal Board Amid Deregulation by Trump

Posted in America, Patents at 7:59 am by Dr. Roy Schestowitz

They mean patent litigation, not patents

Make Patents Great Again

Summary: Political change (transfer of power from one political establishment to another) is seen as an opportunity by patent maximalists seeking to restore the chaos which the US patent system (examination and litigation) once was

The last post dealt with Trump’s Supreme Court nominee (Neil Gorsuch) and Trump’s newly-appointed acting solicitor general (Noel Francisco). There’s no evidence to suggest that they are bad news when it comes to patent scope. Last month we wrote that patent policy under the Trump administration looks rather benign so far; they just need to keep people like Randall Rader out.

“Last month we wrote that patent policy under the Trump administration looks rather benign so far; they just need to keep people like Randall Rader out.”In similar news, Professor Dennis Crouch comments on “Trump Orders on Regulation” (a controversial/partisan subject). The gist of it is, “Question for patent prosecutors: What PTO regulations should be eliminated?”

A lot of patent prosecutors probably want an almost unaccountable USPTO where patent scope is out of control and there is no appeal board. Crouch’s site recently (almost on the same day as the above) gave his platform to Fish & Richardson, a patent law firm, to speak regarding the subject, i.e. he let them resort to influencing policy (guess what they want, as always). Oliver Richards (of Fish & Richardson) wrote: “Any resolution of the reviewability issue must comply with the statute, must put teeth to Congress’s embrace of efficiency, and at the same time must make sure that the rights of patent holders are adequately protected. The approach I have outlined above, in my view, adequately balances efficiency with appropriate supervision of the PTAB. I’m curious to see what you all think, and I look forward to reading the comments.”

The Patent Trial and Appeal Board (PTAB) is itself a supervisory function. Now they want to see it restricted as well? What are they advocating for, another Battistelli? Like those appeal boards that enjoy no independence (only in theory but not in practice)? Do they want another EPO-like scandal, this time in the US?

“What are they advocating for, another Battistelli?”IAM, i.e. the patent maximalists, went with the headline “Making patents great again?”

To quote: “President Trump’s election victory was one of the biggest political shocks in US history. His new administration promises changes in many areas – but when it comes to patents, much of the thinking remains unknown” (it should be noted that IAM’s editor does not like Trump and never tried to hide it).

It remains to be seen whether PTAB, which we shall deal with in our next post, is safe under Trump. We have not seen any evidence to the contrary, at least not yet.

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