By James Edwards
June 22, 2017 at 5:00 am ET
Following five months of intrigue, the last Obama-appointed head of the patent office, Michelle Lee, has resigned. President Donald Trump will now appoint a new director of the U.S. Patent and Trademark Office.
Here’s a suggestion: Choose someone who understands and is committed to the exclusive private property right to one’s invention that a patent secures.
Behind the scenes, there’s a big tug of war. On one side there are the forces of Silicon Valley and other special interests whose business models don’t depend on their own invention and patents. On the other side are the inventive economic sectors that bear upfront costs and risks and reap their deserved rewards during the period of exclusivity of their patents, including independent inventors and those who commercialize inventions.
For anyone who’d like to see the economy grow and create the kinds of good-paying jobs that support families and stimulate other businesses, solid patents and secure patent rights must be a top priority.
Unfortunately, our patent system has suffered serious harm in recent years. This includes a change in the disposition of the U.S. Patent and Trademark Office against its own bread and butter.
That is, the office that issues U.S. patents on newly created property (i.e., inventions) no longer stands behind its own expert determinations that something is patentable. And the patent office has a quasi-judicial arm that invalidates issued patents at an alarming rate. The Patent Trial and Appeal Board is so reckless in canceling patents it’s known as “patent death squads.”
This unhealthy skepticism by the PTO against inventions and its shift against private property rights in patents has occurred over recent decades, injecting greater and greater uncertainty and heightening the risk exposure for America’s inventors and investors.
It hasn’t help that Lee, an alumna of Google, a company with both deep pockets and animosity toward patents, sped PTO down this wrong path on her watch.
Thus, the next PTO director must put the agency’s house back in order. The overhaul that’s long overdue will require strong leadership from the top. And that leadership must come from someone who has hands-on experience with patents, patent licensing and commercialization.
The next PTO director should have served as a senior executive at a company that engages in research and development, and for which building and managing a patent portfolio is a central part of its business model. Patents and commercialization must have occupied the lion’s share of this person’s time and energy.
Trump’s choice for PTO director must thoroughly understand how patents secure an exclusive private property right and how certainty about that property relates to turning an idea into a new product or valuable tool. In other words, knowing how patents contribute to the creation of wealth is essential in the next PTO chief.
As well, the next PTO director has to be fully committed to reforming the agency’s culture into one that regards inventors as the customer. This means returning to timely patent examination, fairness toward inventors and patent owners in every dealing with the PTO, efficient and effective use of patent fees and standing behind the agency’s work.
An issued patent should be strongly regarded as valid. The PTAB must no longer act as patent death squad. PTO must overhaul PTAB’s biased procedures and rules so that they favor the patent owner — better yet, PTAB should be repealed, but that would require congressional action.
The next PTO director should constantly push for strong, certain patent rights. The bully pulpit of the agency leadership could help both domestic and foreign “competition” agencies understand that when the Constitution says a patent secures an exclusive right, this means a private property right and it’s inappropriate to shoehorn antitrust into the picture when the right to exclude and the freedom to operate are being exercised.
Further, when foreign countries with track records of stealing U.S. intellectual property harass American IP-centric companies, the next PTO director should run to the sound of the guns and defend these American firms. When foreign competitors use such diabolical tactics to disadvantage U.S. firms, especially when they try to impose penalties that encroach on U.S. sovereignty, the PTO must fight for the American companies seeking to defend their IP.
The position of PTO director is too important to be entrusted to someone who discounts the vital role patents play in our nation’s economic future. This job shouldn’t go to someone from an antipatent sector, who’s had a hand in undoing the American patent system or lacks a deep appreciation for the fact a patent secures a private property right.
James Edwards, who consults on intellectual property policy, is patent policy adviser to Eagle Forum Education and Legal Defense Fund and executive director of Conservatives for Property Rights. The views expressed here are his own.
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