On Wednesday, April 18th, Andrei Iancu, Director of the United States Patent and Trademark Office (USPTO) appeared at the Senate Judiciary Committee’s hearing detailing oversight of the USPTO.

Iancu recently spoke at the U.S. Chamber of Commerce Patent Policy conference where he discussed his goal to “change the dialogue surrounding patents” and steer it in a more positive direction.

In Iancu’s written testimony he began by stating the “USPTO’s mission is a critical one. It is directed toward fostering innovation and economic growth…We are focused on enhancing the country’s innovation ecosystem and providing strong, reliable and predictable intellectual property rights.” He stated that in order for the system of patents to work as intended people need to have confidence in the system.

After Iancu made his remarks the floor opened with Senator Chris Coons (D-DE), one of the initial proposers of the STRONGER Patents Act  which is a bill to strengthen the position of the United States as the worlds leading innovator by amending title 35 to protect property rights of inventors. Coons discussed the U.S.’s recent drop in the patent system, how it went from the world’s “gold-standard” to falling 12th, far below other countries. He felt over the past decade, “there have been a variety of actions on the part of the Judicial, Executive and Legislative branches which have had the cumulative effect of significantly weakening patent rights and the impact of these changes is becoming apparent.”  Senator Coons pointed more specifically to the Patent Trial and Appeal Board (PTAB), post-grant proceedings, and the patent landscape post the American Invents Act (AIA). He attributed the decline to the PTAB and the fact they have created a lot of ambiguity over the validity of patents. He further commented; “while some form of post-issuance review at the USPTO is desirable,” based on statistics from the PTAB’s first five years, “the current review system is systematically biased against patent owners.”

Other committee members began to discuss post AIA decisions such as Alice v. CLS Bank and Mayo v. Prometheus Labs. They feel these cases, which have set the standard in many software and biotech cases, are lacking in clarity. Iancu pointed to this in the chamber conference stating recent Supreme Court cases have inserted ambiguous interpretations of statutes and there needs to be more done to increase clarity and predictability.

Senator Kamala Harris (D-CA) commented that under the Supreme Court’s interpretation of Alice and Mayo, algorithms used in artificial intelligence(AI), could be patentable. She felt this ruling could be beneficial as it could incentivize innovators to look at AI applications for things such as medical research. She asked Iancu; “E=mc2. Would that have received patent protection?” Iancu responded no, unfortunately, E=mc2, Einstein’s theory of relativity, is a mathematical representation of a law of nature and would not be patent eligible. Senator Harris wanted to know if algorithms were mathematical representations of laws of nature. Iancu said, “as a general proposition, human-made algorithms that are cooked up, invented as a result of human ingenuity are different from discoveries and mathematical representations of those discoveries.” 

Iancu went on to discuss that one of his priorities is to have Congress pass legislation to renew the USPTO’s fee authority that is set to expire in September.  Senator Orrin Hatch (R-UT) was concerned participation in the Department of Commerce’s shared services initiative enabled the fees from the USTPO to be “siphoned off for other purposes.” Iancu stated they fees were “cautiously” raised to cover PTO’s costs and help other agency’s further their work but he would like to work with the Commerce Department and Congress to ensure the fees are being used solely for USPTO business. 

Iancu was hit with a question from Senator Mazie Hirono (D-HI) over a recent Yale study that showed a gender bias in patent examination in that women inventors receive far fewer patents than men. Iancu said if we conclude that there is conscious or unconscious bias we will take the steps necessary to address them. When further questioned about programs and initiatives offered to women Iancu said there are many programs and initiatives for women and minorities currently in operation. Such as the All in STEM which is an initiative by the U.S. Patent and Trademark Office to encourage women at all stages – from girls to entrepreneurs – to pursue STEM degrees and work in STEM careers for the benefit of our economy and society. All programs are “critically important” and Iancu would like to “keep [them] going and hopefully grow them.” 

Multiple Committee members seemed willing to examine a legislative fix to patent-eligibility issues under Section 101 as it has not been altered since 1952. Senator Coons’ bill for the STRONGER Patents Act would be strongly considered as part of this legislation as well as the Big Data IP Act that extends the USPTO’s fee-setting authority for 10 more years.

While Iancu is focused on “engaging in a new dialogue surrounding the patent system” it will be interesting to see how Congress reacts and what changes will be implemented that will change the current patent system. 

Suiter Swantz IP is a full-service intellectual property law firm, based in Omaha, NE, serving all of Nebraska, Iowa, and South Dakota. If you have any intellectual property questions or need assistance with any patent, trademark, or copyright matters and would like to speak with one of our attorneys please contact us.