BIO 2018: Stop bashing the patent system, says USPTO director
“It is my firm belief that folks on all sides need to stop relentlessly bashing the [patent] system if they want it to succeed.”
These were the words of Andrei Iancu, director at the US Patent and Trademark Office (USPTO), who delivered the plenary remarks for the IP track at the 2018 BIO International Convention , taking place in Boston between Monday, June 4 and Thursday, June 7.
He added: “Folks have the right to express any view they want, but those who spend their time and money relentlessly attacking the innovation ecosystem and working to find and identify only, and exclusively, faults in the system are unconvincing when they argue that they’re doing so in order to improve that system.”
While stating that no patent system is perfect, he noted that a successful framework cannot be defined by its faults, but instead, attention needs to focus on the goals, aspirations and successes of the system.
To improve, there must be a new dialogue which focuses on the brilliance of inventors, the excitement of inventions and the incredible benefits they bring to the US economy and society as a whole, Iancu said.
“I am calling for the new dialogue to encourage the next generation. We must give the younger folks coming up through the system role models and heroes they can look up to and policies overall should be focused on the positive benefits of our system.”
Turning to section 101, Iancu asked the attendees: “Can you explain briefly, succinctly and clearly what is patentable subject matter law in 2018?” He joked that if anybody had figured this out, “please tell the rest of us”.
Iancu went on to say that this state of affairs cannot remain, adding that the USPTO is working on guidance to that effect, although it is “constrained” by US Supreme Court law.
In April this year, the office issued new guidance on the second step of the Alice-Mayo framework for determining subject matter eligibility.
“Our hope is that this will help simplify and clarify the approach to this aspect,” he said.
Iancu added that in terms of the first step of the Alice-Mayo test, he hopes there will be more to say in the coming months.
“Whatever we do on section 101, it must be industry neutral and technology neutral,” he said, adding that there have been some discussions about having different approaches depending on the industry, but that this isn’t a “workable approach”.
Iancu also addressed patent grants: “Once issued, a patent grant needs to mean something. The scope of an issued patent should not depend on happenstance of which a court or governmental agency gets to interpret that patent.”
Last month, the USPTO proposed to replace the broadest reasonable interpretation standard for construing unexpired and proposed patent claims in America Invents Act trials with the standard that is applied in federal district court and International Trade Commission proceedings.
The current difference makes it “much more difficult to protect, invent and invest in issued patents”, he said.
Written comments on the proposal must be submitted by July 9.
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