‘Do not venture into the woods’
But that is what the prior Congress, White House, PTO and some courts did by talking with and taking the counsel of large multinational infringers (wolves) and how we ended up where we are now -in a patent system where for all but few inventors it is too hard, expensive and slow for us to get, keep and enforce our patents. That is why our large multinational competitors now easily rob and crush us. Without a patent system that secures our property rights we simply have no realistic expectation we will ever be able to commercialize our inventions.
The Director makes excellent points in his address. True, at the founding of our patent system little had changed in the course of human history. Our prime means of transportation, housing, medicine, and overall the way we lived had undergone little change since the beginning of recorded history and often advances were temporary as the discoveries were taken by their inventors to their graves in secret. We are not that far removed from the days of wash boards versus washing machines for washing clothes and ice boxes instead of refrigerators. Some of us still remember the days when our families and neighbors used them and others may still use wash boards and hand operated wringers.
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President Jefferson remarked about the need for a patent system by saying that without it we would be forced to ‘live like savages’. But as above, abandoning the patent system now would be premature. Clearly, we are not out of the ‘woods’ yet.
The changes since the creation of the American patent system have been astounding. But that rate of advance is not sustainable under the present patent system and we argue it has in fact stalled. The reason is simple. Based on our earlier study small entity issued patents have collapsed to only about 10% of their historical shares – if not less and still falling. Without us pushing them our large competitors have no reason to invest in technological advances. They are happy to sell the dusty models of yesteryear so long as the public has no other alternative. We largely can no longer get patents and when we do we can’t keep or enforce them. When we have to fight at any stage we go out of business. In the end, we end up working for our large competitors -for free, because they can steal our inventions with impunity knowing we have scant chance of ever stopping them. This is justice?
We have great hopes for Director Iancu. What a stark change in message from prior recent Directors -one we enthusiastically welcome.
Now that Director Iancu is hiring a new Chief Judge for PTAB we believe this is an important time to set the tone for the direction of the Board. When the America Invents Act was passed into law, the drafters and promoters of the bill stated the IPR component of it would be a faster and cheaper alternative to settling patent disputes than through the courts with juries: in short, they would be better. But administrative reviews can only be better if all other factors are no worse -such as if inventors are secured the same rights they enjoy in court. Considering that in court we have access to trial by jury with Article 3 Judges and in an administrative review there is no such access, already inventors have lost crucial rights. Therefore, clearly administrative reviews without our consent are not and cannot be better for inventors than to take our patent disputes to court. Nevertheless, here we are until such time as the question about administrative reviews is more finally settled such as with the bill we are now drafting with the help and direction of our friends in Congress.
Meanwhile, we believe that in order to at least better safeguard our remaining rights at PTAB that it is crucial that the next Chief Judge of PTAB have substantial experience in the courts either as counsel for inventors and small business clients, or as a Judge with substantial experience with patent cases. Only then do we believe our remaining rights will be protected from further encroachment until a final solution is obtained.
Further, we believe the next PTAB Chief Judge would ideally also:
• Be a current member of the USPTO patent bar.
• Have 3+ years of work experience as a scientist, engineer, or programmer.
• Have Post-secondary course work in Computer Science, or work experience in software development so that we have a person who doesn’t trivialize the importance of software. We will materially benefit from someone who has personal first-hand experience in software to understand its inventiveness, value and the toil involved in creating it. We live in a world in which software provides a large of amount of added value and economic value, and reducing patents on software-enabled processes and apparatus gives America’s competitors a huge opportunity to steal some of our most valuable property from its inventors and companies.
Exclude anyone who has:
• been sanctioned by a trial judge
• represented a Petitioner in an IPR
• routinely represented entities in court that have been found to infringe patents
• worked in the Solicitors Office of the USPTO
• worked in any supervisory position at the USPTO, or
• worked as an employee of a company that has been a defendant more often than plaintiff in patent suits.
We applaud Director Iancu for his efforts at reversing the direction of the PTO and welcome his help and support in restoring our patent system and in turn offer him ours.
For our position and the changes we advocate (the rest of the truth) to restore the patent system, or to join our effort, please visit us at https://aminventorsforjustice.wordpress.com/category/our-position/
or, contact us at aifj@mail.com
American Inventors for Justice 