Andrei Iancu, director of the United States Patent and Trademark Office (USPTO), spoke at the U.S. Chamber of Commerce Patent Policy Conference on April 11th.
In his speech he noted that patents are part of the building blocks of innovation and technology. He spoke of Dr. Eli Harari, inventor of flash memory storage, and how without a patent Harari’s successful journey may have had a different, less fortunate, outcome. Harari told Iancu that your idea is your only asset. “If you have no way to protect your idea, you are at the mercy of the next bad guy.”
Iancu attested to the truth in Harari’s comments and stated “our patent system is at a crossroads…our system has been pushed and pulled, poked and prodded.” The result of this is a “system in which the patent grant is less reliable…we are at an inflection point with respect to the patent system. As a nation, we cannot continue down the same path.”
Iancu focused his speech on two key points: creating a new pro-innovation, pro-IP dialogue; and increasing the reliability of the patent grant.
Iancu wants to “change the dialogue surrounding patents.” While admitting there are errors in the system, Iancu stated they will be corrected, abuse will not be tolerated, and the current dialogue should move to a more positive one. The new narrative should define the “patent system by the brilliance of inventors, the excitement of invention, and the incredible benefits they bring to society.” This should be what drives patent policies. He asked those at the conference to reflect, and ask themselves if they are pushing progress forward are they “incentivizing innovation?”
Iancu stated that patent grant reliability is the key to “incentivizing innovation.” He went on to state that without reliable patents inventors are less likely to bring their ideas to the table. This lack of confidence in the granting of patents will lead to a further drop in the U.S.’ patent systems rankings.
The Chamber issued a report identifying the two main reasons for the increased uncertainty of patents: patentability standards, specifically, “patent subject matter eligibility pursuant to 35 USC Section 101;” and opposition procedures, specifically IPR and post-grant proceedings established by the American Invents Act (AIA).
Iancu addressed the report and stated he feels the current laws on patentable subject matter “have created a more unpredictable patent landscape that is hurting innovation and, consequently, investment and job creation.” Recent Supreme Court cases have inserted ambiguous interpretations of statutes that lead to inconsistent rulings by lower courts. He said the Supreme Court law will be applied “faithfully” but this “does not mean, however, that more cannot be done to increase clarity and predictability.”
In regard to post-grant and IPR proceedings, Iancu believes people should view the process “with fresh eyes, in order to understand its true benefits and true challenges…We need to carefully balance rights-holder’s and rights challenger’s interests.”
Iancu touched on the issue of predictability and said “we must ensure that we issue appropriately-scoped patent claims from the get-go.” He focused on the importance of examiners and ways to help increase their effectiveness by increasing their “ability to find the best prior art during examination.”
Iancu closed by stating “[w]e must work together to achieve a careful balance that is most beneficial to the American economy as a whole. In the end, the hallmarks of a well-functioning patent system are the reliability and predictability of quality patents. This is critical for both patent holders and the public.”
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 your patent, trademark, or copyright matters and would like to speak with one of our patent attorneys please contact us.