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04.12.18

The USPTO Has a Nepotism and Lobbying Problem That Jeopardises the Rationality of US Patent Law

Posted in America, Law, Patents at 9:08 am by Dr. Roy Schestowitz

The Office is now being run, almost literally, by the patent microcosm (Andrei Iancu)

Washington sights

Summary: The influence games of Washington are spilling over to the US patent office and poisoning/harming its ability to conduct professional operations without corporate influence (from either side, both corporations and law firms)

THE USPTO has a big — and growing — problem in its hands. It’s nowhere as severe as EPO scandals, but it could potentially develop over time. There is almost one single issue we habitually criticise the USPTO for and it’s to do with former officials, several of whom seem to have become lobbyists, typically for the patent microcosm. Lobbying is quite an epidemic in Washington (DC); it’s renowned if not notorious for it. There are no effective restrictions on such behaviour/operations because it’s “big business” in DC.

“There are no effective restrictions on such behaviour/operations because it’s “big business” in DC.”Lobbyist David Kappos keeps meddling, this time in a largely Microsoft-sponsored (Kappos’ sponsor also) think tank, Fordham IP. Why does the USPTO not intervene? Do they even understand how terrible this looks? He came from IBM and now he lobbies again for IBM among others like Microsoft. He uses his connections (which he acquired during his time as USPTO Director) to steer agenda. Watch last night’s article (titled “US intellectual property in the age of Trump”) which says:

President Trump has already made his mark by appointing a USPTO director and taking a stand against China. Panellists [sic] at the Fordham IP Conference, including David Kappos and James Pooley, assessed the impact Trump could have on IP

Pooley isn’t too bad (we wrote about him in the past), but what on Earth does Kappos do there? Panelist?

“He might be ready to do some damage (to patent reform).”Thankfully, for a number of years Kappos was replaced by Michelle Lee, who helped clean up the mess. But she didn’t last long. Now there’s a new boss (after a temporary one, Matal) and the mask fell off some time earlier this week. He might be ready to do some damage (to patent reform).

Baker Donelson’s Micheline Kelly Johnson, in a sponsored self-promotional piece (published at IAM today), comments on an older talk by Iancu in which he mentioned Section 101. At the time he said nothing too threatening to patent reform. Earlier this week, however, his tune changed somewhat. He adapted to a rather extreme audience. Michael Loney, who is based in New York and edits a patent maximalists’ site, wrote this: “Andrei Iancu has declared “we must change the dialogue surrounding patents”, and revealed the USPTO is looking to simplify the eligibility determination for its examiners and assessing PTAB issues such as how proceedings are instituted [...] USPTO director Andrei Iancu yesterday gave a strident speech at the US Chamber of Commerce Patent Policy Conference, acknowledging criticism of the patent system and stressing the need to improve the accuracy of patent grants.”

“He came from a firm that had worked for Trump.”Dennis Crouch wrote about it some hours ago. “USPTO Director Andrei Iancu gave the keynote address at the April 11, 2018 Patent Policy Conference hosted by the U.S. Chamber of Commerce,” he said. Well, that’s what happens when the Trump-appointed ‘head of patents’ takes guidance from lobbyists and extremists of the U.S. Chamber of Commerce and AIPLA. He came from a firm that had worked for Trump.

Watchtroll (Gene Quinn) wrote about this with excitement. The headline is preceded by “BREAKING:” (yes, all CAPS!). A USPTO Director went to think tanks’ events lately (U.S. Chamber of Commerce and AIPLA, soon IAM too), so Watchtroll is now quote-mining for him. He’s hoping this will help derail the patent reform. “We are at an inflection point with respect to the patent system itself. As a nation, we cannot continue down the same path if we want to maintain our global economic leadership. And we will not continue down the same path,” Iancu is quoted as saying. There’s a full transcript.

“The government-to-lobbying (or vice versa) pipeline is a highly disturbing one, but it’s not uniquely American.”It’s worth noting that Watchtroll has also just quoted the lobbyist-turned-official Makan Delrahim, trying to twist some words for the maximalists’ agenda. “While I believe in a very restrained approach to antitrust enforcement when it comes to the legitimate exploitation of valid IP rights, the Division will not hesitate to enforce against anticompetitive collusive conduct,” Delrahim is quoted as saying.

The government-to-lobbying (or vice versa) pipeline is a highly disturbing one, but it’s not uniquely American. The USPTO might want to do something about that, but currently its boss may be part of the problem; his firm had worked for Trump before Trump nominated him for this position.

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