Patent Office Accused of Allowing Politics to Decide Inventors’ Rights

July 22, 2022 by Tom Ramstack
Patent Office Accused of Allowing Politics to Decide Inventors’ Rights
The U.S. Patent Office in Alexandria, Virginia.

WASHINGTON — Congress is trying to develop a method of depoliticizing a patent system closely tied to the vitality of the U.S. economic system.

Patents are a centerpiece of American technology and foreign trade, particularly in competition with China.

Legal disputes over who owns the rights to the inventions can involve “sometimes billions of dollars,” said Rep. Henry Johnson, D-Ga., during a congressional hearing Thursday.

In recent years, inventors and even some judges have complained that political policy rather than the merits of patent applications determines who wins or keeps a patent.

“We want due process, we want transparency,” said Rep. Darrell Issa, R-Calif. “To get both, we’re going to have to make changes in the current system.”

Due process refers to the 14th Amendment’s guarantee of procedural protections — such as hearings before a judge — before the government can deprive anyone of “life, liberty or property.” The judges are supposed to make decisions free of bias or political influence.

The House Judiciary Subcommittee on Courts, Intellectual Property and the Internet was spurred to action by a recent Government Accountability Report.

It found that 75% of administrative patent judges reported pressure from administrators at the U.S. Patent and Trademark Office to allow them to intervene in their rulings. Typically, the administrators were trying to enforce a trade policy.

Decisions from the agency’s Patent Trial and Appeal Board must “be based on the facts presented,” Issa said. Instead, “There was a behind-closed-doors process.”

The Patent Trial and Appeal Board is an adjudicative body within the Patent and Trademark Office. The PTAB’s 229 judges rule on appeals from patent examiners’ decisions and adjudicate whether inventors can keep patents when they are challenged by third parties.

Congress set up the PTAB 10 years ago to streamline the patent process that previously became bogged down in years of lawsuits.

Initially, it worked fine as a better alternative to the time and expense of traditional courts, said Richard Torczon, a patent attorney and former administrative patent judge.

“I just think the culture drifted over the years,” Torczon said.

As the PTAB evolved, political pressure grew to align the rulings with policies of the sitting presidential administrations, according to the Government Accountability Office report. The pressure was exerted through management oversight of the judges’ job performance.

“Many judges we surveyed said director-created policy and guidance had an effect on their ability to decide cases independently,” the GAO report said.

One of the problems pointed out by lawmakers was the lack of appeal rights when someone loses before the PTAB. Current law does not allow appeals.

Legislative solutions the subcommittee is considering would allow claimants before the PTAB to appeal to federal courts. Lawmakers also are thinking about ways to enforce rules banning patent administrators from influencing judges’ decisions.

“We do believe there needs to be congressional action,” Issa said.

The internal review comes at a time of intense political pressure on the Patent and Trademark Office as it seeks to protect U.S. technology and trade.

The U.S. government accuses China of state-sponsored intellectual property thefts and unfair competition to beat out American companies. Any efforts to protect U.S. patent rights have largely failed in Chinese courts.

This week, the Patent and Trademark Office made what appears to be an incremental improvement in its international enforcement of patent rights.

The Patent and Trademark Office’s director signed a memorandum of understanding with the World Intellectual Property Organization to expand use of the international organization’s Arbitration and Mediation Center to resolve patent disputes between owners in different countries.

Tom can be reached at [email protected] and @TomRamstack

A+
a-
  • China
  • competition
  • US Patent and Trademark Office
  • In The News

    Health

    Voting

    Congress

    March 27, 2024
    by TWN Staff
    Rep. Cleaver New Co-Chair of House Renewable Energy and Energy Efficiency Caucus

    WASHINGTON — Rep. Emanuel Cleaver II, D-Mo., is the new Democratic co-chair of the House Renewable Energy and Energy Efficiency... Read More

    WASHINGTON — Rep. Emanuel Cleaver II, D-Mo., is the new Democratic co-chair of the House Renewable Energy and Energy Efficiency Caucus. He was invited to serve as co-chair by Sens. Jack Reed, D-R.I., and Mike Crapo, R-Idaho, the co-chairs of the Senate Renewable Energy and Energy... Read More

    March 27, 2024
    by Dan McCue
    New Dem Chair Kuster Announces Retirement Following 2024 Election

    CONCORD, N.H. — Rep. Annie Kuster, D-N.H., who, among other things, is the current chair of the New Democrat Coalition... Read More

    CONCORD, N.H. — Rep. Annie Kuster, D-N.H., who, among other things, is the current chair of the New Democrat Coalition in the House, revealed Wednesday that she will not seek reelection to Congress this year. In a lengthy statement released by her office, Kuster gives no... Read More

    March 25, 2024
    by Dan McCue
    CPAC Releases Ranking of Most Conservative Members of Congress

    WASHINGTON — The Conservative Political Action Conference, also known as CPAC, on Monday released its annual ranking of members of... Read More

    WASHINGTON — The Conservative Political Action Conference, also known as CPAC, on Monday released its annual ranking of members of the House and Senate based on their conservative bona fides or lack thereof. To produce this year’s scorecard, the CPAC foundation’s Center for Legislative Accountability analyzed... Read More

    March 22, 2024
    by Dan McCue
    After a Decade on Capitol Hill, Brad Howard Steps Out on His Own

    WASHINGTON — After a decade on Capitol Hill, most recently as chief of staff for former Rep. Stephanie Murphy, D-Fla.,... Read More

    WASHINGTON — After a decade on Capitol Hill, most recently as chief of staff for former Rep. Stephanie Murphy, D-Fla., and communications director of the Blue Dog Coalition, Brad Howard knew it was time for change. “It was time to move into the private sector,” he... Read More

    March 22, 2024
    by Dan McCue
    Greene Files Motion to Vacate Speaker’s Chair

    WASHINGTON — For the second time in five months, a member of the Republican Conference in the House has filed... Read More

    WASHINGTON — For the second time in five months, a member of the Republican Conference in the House has filed a motion to vacate the chair of the party’s speaker. But this time, Rep. Marjorie Taylor Greene, R-Ga., says the motion is intended merely as a... Read More

    March 22, 2024
    by Dan McCue
    Gallagher to Leave Congress April 19

    WASHINGTON — Rep. Mike Gallagher, R-Wis., who already announced he would not seek reelection, surprised many on Capitol Hill on... Read More

    WASHINGTON — Rep. Mike Gallagher, R-Wis., who already announced he would not seek reelection, surprised many on Capitol Hill on Friday by announcing he plans to leave April 19, several months before his current term is up. Gallagher’s impending departure will further shrink the razor-thin Republican... Read More

    News From The Well
    scroll top