Everyone in this election will make an effort to improve the position of inventors.
I’ve actually accomplished it—I’ve assembled and coordinated teams to significantly change the law and PTO operations for inventors. And I have a clear and doable proposal for significantly improving responsiveness of the Patent Office to the needs of inventors and the patent bar.
In 2006-09, the Patent Office attempted to promulgate regulations to deal with their examination backlog. The regulations would have restricted the complexity of inventions you’re allowed to patent to only simple inventions, would have restricted any team of inventors to only one good idea every 60 days, would have required inventors in crowded fields to examine their own applications, and would have restricted the right of appeal. The PTO’s proposed regulations are here, here, here, here, and here. In other words, the PTO would have dealt with its backlog by quashing invention.
I quarterbacked the effort to quash these rules: we made several presentations (here and here) to the White House Executive Office of the President, assisted Dr. Tafas’ team with their court briefs, and assembled teams to file our own briefs in various courts. As a result of these efforts, the President quashed (and here) these regulations. A number of blogs reported the success. (here, here, here) The PatentDocs blog reported it as the #2 patent news story of 2008.
In 2009-10, I published a number of articles (here, here) advising that the AIA would harm inventors. Those articles were circulated to every office on Capitol Hill, and led to a meeting with Senate Majority Leader Harry Reid. This meeting delayed the AIA by a year. Sen. Reid voted for inventors on every amendment and on final passage. We couldn’t stop it, but we got changes and delay.
When the PTAB wants to make rules, it’s supposed to go through legal steps that ensure public participation and accountability. The PTAB has end run those rules repeatedly. Last year, I filed two briefs (here, here, here) on the PTAB’s unlawful power grab. In March, the Federal Circuit agreed with me, and clipped the PTAB’s wings.
I believe that operations of the Patent Office could be substantially improved by the simplest of reforms—the PTO could and should follow the law. Presidents Bush and Trump issued several executive orders as recently as last year that would improve fairness and efficiency of PTO operations; the PTO hasn’t implemented them. The Administrative Procedure Act and Paperwork Reduction Act set a number of procedural standards for agencies, to ensure “reasoned decisionmaking,” fairness and efficiency, and cost-benefit balancing of the PTO’s regulations and proceedings. The PTO hasn’t implemented those. The Regulatory Flexibility Act requires agencies to tailor those regulations to reduce economic impacts on small entities. The PTO doesn’t take the RegFlex Act seriously either.
As a member of PPAC, I would go beyond advocating for the interests of inventors and for attorneys that represent them. I’d advocate for the rule of law. I hope to coach the PTO in its legal obligations to inventors, attorneys, and the public. I am confident that the problem is simple lack of attention—the PTO simply doesn’t have these laws ingrained in its operational culture. These reforms are right down the middle of Director Iancu’s reform agenda—he just needs a supportive voice on PPAC to keep attention on them. We’d all see immense improvement in the PTO’s responsiveness to the public if there were a person on PPAC focused on an educational effort.
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