Protecting intellectual property still matters in a pandemic; Washington Examiner, April 21, 2020

Kevin Mooney, Washington Examiner; Protecting intellectual property still matters in a pandemic

"With businesses now under pressure as a result of COVID-19, they can hardly afford to absorb the costs associated with patent allegations that cannot be substantiated under close scrutiny. 

That’s why it’s important to preserve a trial-like procedure organized within the U.S. Patent and Trademark Office that makes it possible to review the legitimacy of patents through a streamlined, cost-effective process that avoids expensive litigation. 

Unfortunately, some lawmakers (such as Democratic Sen. Chris Coons of Delaware) are pushing legislation that would gut and dilute what is known as the inter partes review process, which provides important safeguards against patents that should not have been issued. 

A better solution would be for policymakers to provide those businesses harmed by the coronavirus with greater assurances and predictability. They can do this by defending and strengthening the inter partes review process as a tool to eliminate low-quality, wrongly granted patents that harm the economy, stifle innovation, and cost jobs. 

There’s no disputing the fact that patent examiners are overburdened. Government records show that in 2018, there were 640,000 patent applications filed, but fewer than 8,200 patent examiners available to do a thorough review. On average, patent examiners only have about 19 hours to evaluate a patent application. Under these time constraints, a handful of ill-conceived applications are approved."

Supreme Court Upholds Procedure That’s Said to Combat ‘Patent Trolls’; The New York Times, April 24, 2018

Adam Liptak, The New York Times; Supreme Court Upholds Procedure That’s Said to Combat ‘Patent Trolls’

"The Supreme Court on Tuesday upheld the constitutionality of a procedure that makes it easier to challenge questionable patents.

The procedure, created by Congress in 2011, resembles a trial in federal court, but is conducted by an executive-branch agency. Supporters say it helps combat “patent trolls,” or companies that obtain patents not to use them but to demand royalties and sue for damages.

Opponents say the procedure violates the Constitution by usurping the role of the federal courts, violating the separation of powers and denying patent holders the right to a jury trial.

By a 7-to-2 vote, the Supreme Court ruled that the procedure was a permissible way for the agency that administers patents to fix its mistakes."

Allergan is dealt another setback as patent board shoots down Mohawk patent deal; STAT, February 23, 2018

Ed Silverman, STAT; Allergan is dealt another setback as patent board shoots down Mohawk patent deal

"In a closely watched case, a U.S. patent appeals board ruled that a Native American tribe cannot claim sovereign immunity in order to avoid a certain type of patent challenge. The decision is a blow to Allergan (AGN), which last fall transferred patent rights to one of its biggest-selling medicines to the St. Regis Mohawk Tribe in hopes of thwarting generic competition.

Procedurally, Allergan sought to avoid inter partes reviews, a type of patent challenge that has vexed drug makers since going into effect six years ago, because these are easier and faster to file than patent lawsuits. At the time it transferred patent rights to its Restasis eye treatment, which last year generated more than $1.4 billion in sales, Allergan was facing a conventional patent challenge in a federal court."

Next PTO Director must have management experience, patent savvy, and leadership skills; IPWatchdog, June 12, 2017

Judge Paul Michel, IPWatchdog; Next PTO Director must have management experience, patent savvy, and leadership skills

"All these ills can be addressed effectively by the PTO’s new Director, provided they have the necessary management experience, patent savvy, and leadership skills.  Someone like me who has not run anything larger than a courthouse may lack the needed capabilities, as may someone who has run nothing larger than a litigation team or small law firm.   Same for the gifted academics who provide  such useful commentary on all matters patent.  Same with former Capitol Hill staffers(I was once one myself).  They all have their place, but it is not at the helm of America’s 13,000 person innovation agency.

Rather, we need someone from a large company who has shown leadership ability and has a proven record of successfully managing a significant part of a large organization.  Of course, the person must also have experience prosecuting, licensing and litigating patents.  And, a background in science or engineering.  But many patent lawyers have such experiences.  Few, however have the necessary management chops.

In my opinion, David Kappos embodied all these attributes to a great degree.  And, he came from a long, highly successful career at IBM, where he ran a large operation that depended on using patent skills both for protecting patented inventions and defending against patent assertions by others.  A company or law firm that primarily or only employs one or the other strategy is probably not the best talent pool from which to select a PTO Director, because achieving balance between owners and users is the key to success.

Finally, the person should have deep experience with the patent policy debates and the many agency reports and legislative proposals that have roiled the patent community for a decade.  Today, those debates continue, unabated."

A World Without Patents; Forbes, 5/12/16

David Pridham, Forbes; A World Without Patents:

"On the surface, Cuozzo Speed Technologies v. Lee is about whether the Patent Office (PTO) can use a different standard in hearing challenges to a patent’s validity after it’s been granted than the standard used by the federal courts. It’s also about whether the taking of a legal property right (a patent) ought to happen via an administrative hearing, without judicial review.

During oral arguments, Chief Justice John Roberts seemed shocked by the PTO’s system for challenging patents, known as Inter Partes Reviews (IPRs), calling it a “bizarre way … to decide a legal question” and a “very extraordinary animal in legal culture to have two different proceedings addressing the same question that lead to different results.” He was referring to the fact that a patent upheld as valid and infringed by the federal courts can then be taken by the infringing defendant to the PTO’s Patent Trial and Appeal Board (PTAB) and declared invalid!...

Even if you stipulate that there are bad patents that shouldn’t have been issued, is it really believable that 90% of all patents granted are invalid — despite being issued only after careful review by PTO examiners in a process that takes over two years and results in the rejection of half of all patent applications?

If we really believe that 90% of Patent Office output is garbage, then we should just shut the agency down and save everyone all the trouble.

There would be consequences, of course. Without patents and the competitive protections they afford, individuals and companies will not invest the money it takes to develop new cures for disease or create new technological wonders. That’s because they know others will simply copy their inventions with impunity and then sell them at a much lower cost, since it didn’t cost them a dime to develop these in the first place. This is a terrific way to drive the innovators out of any industry."