05.27.18

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Letting the USPTO Decide on Fees Would Lead to a ‘Battistelli Scenario’

Posted in America, Patents at 1:02 pm by Dr. Roy Schestowitz

Don’t let Iancu become the ‘American Battistelli’

Silver Quarter

Summary: The US patent office, which ultimately profits from patent maximalism, is being given too much power/leverage over the laws/policy which govern its operations, enabling the Trump-connected new chief to implement rollbacks which would harm patent quality and empower patent trolls

THERE are several concurrent and ongoing efforts to sabotage the US patent system’s reform. This is part of the lobbying campaign for the litigation ‘industry’ (or pipeline) and a lot of the lobbying targets the Patent Trial and Appeal Board (PTAB). Thankfully, they haven’t been able to stop PTAB or even slow it down (not considerably anyway).

Several months ago we saw the USPTO‘s fee-setting authority misused/abused to make PTAB IPRs more expensive*, courtesy of Mr. Matal, who had helped bring AIA into full swing more than half a decade earlier.

Senator Coons has just shown up again. He’s far from a scientist, having studied Arts and then pursued a Master’s Degree in Ethics, according to Wikipedia. Why does he obsess so much over the patent system, which he clearly does not understand? He and his staff keep showing up in patent maximalists’ lobbying events. The patent trolls’ lobby has also just mentioned him as follows:

New USPTO fee setting powers could be approved by September, predicts Senator Coons

USPTO Director Andrei Iancu was back on Capitol Hill earlier this week for an appearance before the House of Representatives’ Judiciary Committee. With the impact of the Supreme Court’s decision in SAS Institute, the proposed change to the claim construction standard in post-issuance proceedings and ongoing concern around uncertainty in the law on what constitutes patent eligible subject matter, there was certainly plenty for the members of Congress to grill him on. It was notable therefore that in his opening statement the first issue that Iancu addressed was the USPTO’s fee-setting authority.

The USPTO probably should not be in a position like that. There should be further separation of authority and power because the USPTO strives to make as much money as possible, which sometimes means granting as many patents as possible and revoking almost none (as that might discourage applicants, or so-called ‘repeat/regular clients’).

The CCIA recalls the dying anti-PTAB bill of Coons and then speaks of a “Fee-Setting Reauthorization Bill”. The CCIA’s Josh Landau writes:

As I wrote back in March, fee-setting authority is critical to USPTO operations and it expires this September. This authority ensures that the Office is properly funded, and helps ensure that the Office isn’t financially incentivized to grant patents that would not otherwise have been granted. The Chabot-Johnson companion bill would renew this authority, providing the Office with the ability to continue to recover the costs of examination. Without their bill, PTO operations will be less efficient and we’ll likely see more bad patents issue.

These “bad patents” are what we worry about; there need to be affordable appeal mechanisms such as PTAB. Affordability is key. Don’t allow Iancu to price it out of reach.

Watchtroll, the patent extremists’ voice, has mentioned politicians like Lofgren and Issa (pro-patent reform) in relation to this. Quoting:

On Tuesday, May 22nd, the House Judiciary Committee convened a hearing regarding oversight of the U.S. Patent and Trademark Office. Appearing before the committee to testify on the agency’s actions was USPTO Director Andrei Iancu. Among the major topics discussed by members of the committee were the agency’s authority to set fees collected from users, the potential diversion of those fees to other agencies within the Commerce Department, as well as recent changes proposed by Director Iancu to bring aspects of patent validity trials conducted by the Office into alignment with standards practiced in Article III district courts.

Several questions are hanging on the balance right now, including patent scope (because Iancu is 'pulling a Berkheimer'), PTAB procedures (because of SAS Institute v Iancu) and the cost of various ‘products’ (or services). Based on what we have seen so far (a few months), Iancu is a foe of patent reform (AIA) and more or less an extension of the patent microcosm, albeit he’s bound by courts’ decisions. He should not be the one to determine law/rules, including the costs of associated services. Just look no further than what happened to the EPO, where Battistelli started telling his bosses (the Administrative Council) what to do rather seek advice (or formal proposals) from them. They became ‘rubber stampers’.
____
* The EPO‘s Battistelli did something similar to PTAB’s equivalent (BoA) at Europe’s largest patent office. He did this repeatedly even; maybe because it helps hide the decline in patent quality.

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