Biden’s Pick for Patent Chief Could be More Important than Many Realize

https://arstechnica.com/tech-policy/2021/05/how-the-next-patent-office-director-could-shape-the-patent-system/

According to Timothy B. Lee, who writes for ARS Technica, President Biden is expected to announce a new Patent chief — a director for the US Patent and Trademark Office (USPTO). What might normally be a “ho-hum” appointment could actually have long-lasting impact on big tech, the future of patents, innovation, investment and the legal process that ties this all together.

According to Lee’s description, three names have been mulled about to take the position: Elissen Turner, Jannie Lau and Colleen Chien.

If Obama’s tenure bode poorly for patent owners and made life easier for defendants in patent infringement suits, Trump turned the tables to a small extent in favor of patent owners. Where will Biden’s pick go?

In 2011, Obama signed into law the America Invents Act, which sought to overhaul Patent Law. One of its major changes included the establishment of a “death squad” for patents , the Inter Partes Review (IPR) process that allows the USPTO to invalidate patents. The problem was that the courts refused to continue the lawsuit trial process while an IPR was underway, and patent infringers would make smart use of filing an IPR — attack the validity of the patent while you continue to infringe upon it. This wasn’t all bad, of course, as a cheaper and faster method of validating or nullifying a patent should be available. However, according to many, the USPTO, at least under Obama, was tougher on patents than previously, which made life very difficult for patent owners to protect their patents.

Things turned somewhat under Trump back in favor of patent owners. Andrei Iancu was appointed to head the USPTO, a move celebrated by pro-patent advocates. Judicial appointees, especially in the Eastern and Western districts of Texas involved pro-patent appointees. For example, according to Lee, a law was passed allowing the system to decide whether to stay the suit while the patent was being reviewed. The Texas judge appointed by Trump refused to to issue stays, while the Patent office would often times refuse to review cases being judged in the Texas court by Alan Albright.

During Trump’s tenure and under Iancu, patents were issued more readily on software, something the anti-patent crowd is most adamant against. As a result, and in 2019, new USPTO guidelines urge patent issuers to consider granting patents to activities that were facilitated by a computer program, which is what most tech patents involve.

Turner has represented some of the biggest tech companies in the world who make most of their revenues from licensing patents, like Intellectual Ventures. Its opponents have dubbed it the “worlds biggest patent troll”. But Turner has also represented Rockstar Consortium — which was owned by some of the biggest tech giants in the world — who bought up a bankrupt companies’ patents and then sought to monetize them.

Lau as well spent years as general counsel at another such firm, InterDigital. However, if Intellectual Ventures is a classic Non-Practicing Entity, InterDigital actually employs hundreds of engineers and can be credited with much of the innovation in the wireless realm.

It seems that those who attack NPEs for their financial model are just as quick to employ that model when it suits them.

If Chien were to be appointed, this could take the office in a different direction. A law professor at Santa Clara University, Chien has advised the Obama administration on patent reform matters, and spent much of her career writing about the harmful effects of NPEs who abuse the system (trolls). Chien has written papers on the harmful impact of such NPEs on the tech economy, and the benefits when low-quality patents are invalidated. However, she does not seem to be an anti-patent radical, as Lee writes, and describes software and tech patents as the “currency of innovation”.

Lee points out that unlike many other matters, patent ideology does not always line up with partisan political ideology. What is clear here is that between Obama and Trump there was a noticeable swing in the approach to intellectual property.

It is worthwhile to pay attention to what Biden decides on this matter. Whether Turner or Lau are appointed, or Chien, or someone else entirely, the appointment could have long-term bearings on the importance of protecting intellectual property in the US.

And of course, as we know, when intellectual property isn’t protected, innovation will soon suffer and decline as inventors and investors outside the major tech giants will be loathe to take such leaps.

Choose carefully President Biden.

Based in Denver, Casey covers tech, the tech industry, and society in the United States. Stories and inquiries at: osbournecasey@gmail.com