In a speech to Stanford Law School entitled “Speaking Truth to Patents”, Michelle Lee gives a great talk on what her approach will be, “pro patent system”.
“Now, I wouldn’t call myself “anti-patent,” nor would I call myself “pro-patent,” whatever those labels mean. But let me be clear: I am, without reservation, “pro-patent system.” What do I mean by “pro-patent system”? It means that I believe that a strong patent system is essential to fostering the innovation that drives our economy.” Sounds good rolling off the tongue, but what to her is “a strong patent system”?
It appears that to Director Lee, a “strong patent system” includes fewer patents, more expensive patent prosecution, more challenges to patents, more risk to patent plaintiffs, and all that translates to a further slant in favor of big business. For example, she speaks favorably of ‘higher standards for claim clarity”, which is very pro big business (small inventors have trouble with drafting claims, big businesses have patent attorney highly trained in drafting claims). If there is a desire for more clarity in claims, shouldn’t we force patent examiners to write the claims? I have been an advocate of that for 30 years, but not big business as that would level the playing field and big business naturally wants the system slanted pro business. Perhaps there is room to urge Ms. Lee to back up her rhetoric with support for having patent examiners write the allowable claims. That would also enormously simplify patent prosecution and bring certainty to the system and thus lower costs, and would also save time. The current mode of expecting an independent inventor to write a decent patent claim is unrealistic, and the courts treat such sloppy unclear claims with great disrespect and with great uncertainty that undermines the purpose of patent claims, which is to lend certainty to the system by providing notice of what’s covered and what’s not covered.
She is, as predicted, very focused on so-called “abusive patent litigation” but does not provide any useful detail about what is abusive and what is not abusive, and just speaks generalities “abusive litigation is a flaw in an otherwise great system” she says, “If we care about the system, we have to bring our expertise and experiences to bear on how we can address this problem before it threatens to undo so much of what we’ve all worked so hard to build together. ” She appears to be looking for answers rather than providing solutions. Hopefully, with time, that will change.
The patent system as currently structured is so heavily slanted against small inventors and in favor of big business as to be just what Thomas Jefferson feared, a rich man’s tool used by the politically well connected to control the economy to obtain unnatural benefits. James Madison tried to structure a simple patent system that leveled the playing field between rich and poor and rewarded the first and true inventor, not the richest or most politically connected. That is patents are increasingly FTF (For The Fatcats). Keeping with the acronym, we now have FTF (First To File – where big businesses with big patent staffs routinely win the race to the PTO and squeeze out little guys) and FTF (Fast Track for Fatcats – pay for priority so the rich can get their patents fast and little guys get bypassed and wait even longer) and FTF (Fudge The Figures – the PTO reports in new self-serving skewed ways how the system is supposedly improving), FTF (Forfeit the Fees – continued fee diversion despite promises it is stopped to tax small inventors and keep them out of the system) and FTF (Farmout To Foreigners – where we send examination work to Russians, Koreans, and Europeans rather than do it here – just think we send our best new technology to the Russians and even pay them to examine it!), FTF (Fortunes to Fight – patent enforcement litigation routinely costs over a million dollars, often much more) and it all sums up likely to FTF (Forfeit The Future). The system is out of whack and needs a major correction to where small inventors have an equal chance.
So what will her pronounced focus be: ending “abusive patent litigation”, further implementation of the AIA (America Invents Act of 2011 or as I call it the America Stops Inventing Act or “ASIA” since that is where all the new jobs it “creates” will be going), the bloatation of the USPTO with new satellite offices and more bureaucrats, and perpetuating the current system, but she also strikes a promising tone in saying “we must acknowledge that the patent system doesn’t belong to a narrow set of patent stakeholders, but to all of us. Currently “all of us” seems to not include small and micro inventors”. Hopefully, that can change, but much of the change needed is not at the USPTO at all, but legislatively and in the courts to make it feasible for small inventors to obtain and enforce patents to get back to the original goal of making patents a reward based on natural rights rather than richness, to make patents more of a reward for invention and less a reward for being rich and hiring a rich lawyer to keep you rich.