Well, this would be a nice surprise: it seems that Michelle Lee may be staying on as Director of the US Patent & Trademark Office. Director Lee has done a great job for businesses and innovators over the last few years.
Perhaps her most important contribution has been her recognition that the USPTOUnited States Patent and Trademark Office. See also PTO. issued a lot of bad patents over the previous couple of decades, and that too many of those bad patents have been ammunition for patent trolls.
Patent trollAn entity in the business of being infringed — by analogy to the mythological troll that exacted payments from the unwary. Cf. NPE, PAE, PME. See Reitzig and Henkel, Patent Trolls, the Sustainability of ‘Locking-in-to-Extort’ Strategies, and Implications for Innovating Firms. litigation has exploded in the 21st Century. Even though there were fewer trollAn entity in the business of being infringed — by analogy to the mythological troll that exacted payments from the unwary. Cf. NPE, PAE, PME. See Reitzig and Henkel, Patent Trolls, the Sustainability of ‘Locking-in-to-Extort’ Strategies, and Implications for Innovating Firms. suits filed in 2016, there were still nearly 3,000 companies sued by patent trolls last year. Research shows that patent trolls typically use older patents; this means that a bad patent issued today might cause harm 10 or 15 years from now in the hands of a patent trollAn entity in the business of being infringed — by analogy to the mythological troll that exacted payments from the unwary. Cf. NPE, PAE, PME. See Reitzig and Henkel, Patent Trolls, the Sustainability of ‘Locking-in-to-Extort’ Strategies, and Implications for Innovating Firms..
In short, bad patents can have real world consequences, many years after the USPTOUnited States Patent and Trademark Office. See also PTO. was involved. It’s important to improve the examination process to improve the quality of patents issuing from the Office.
Director Lee, to her credit, has taken on the difficult problem of improving patent quality, rather than simply being too strict in issuing patents. That is, she has directed the Office to try to issue the right patents, efficiently. Under her leadership, the USPTOUnited States Patent and Trademark Office. See also PTO. launched the Enhanced Patent Quality Initiative, a long-term effort to improve patent quality across the Office. This has included a variety of events to gather feedback from stakeholders on nearly every part of the patent prosecutionPatent prosecution is the process of applying for a patent, along with any further proceedings before the USPTO. process. The USPTOUnited States Patent and Trademark Office. See also PTO. has also started a number of pilot programs to look for possible ways to make patents better, including a pilot to include glossaries of terms, a pilot to identify best practices for clarifying the record, and a pilot to provide an additional review of a case before an applicant has to appeal. A number of pilots are still underway, and there are more planned; it’s better to have continuity of leadership to continue to push these to completion.
Michelle Lee has also overseen the implementation of inter partes reviewAn adversarial procedure created by the AIA for challenging patents. Intended to be similar to a court proceeding, the parties argue before an Administrative Patent Judge, not a patent examiner. The challenger must show a reasonable likelihood of successfully invalidating one claim before the PTAB will agree to grant a petition for review. (IPRIntellectual Property Rights. Usually associated with formal legal rights such as patent, trademark, and copyright. Intellectual property is a broader term that encompasses knowledge, information, and data considered proprietary whether or not it is formally protected.), which has proven to be effective in dealing with patents currently being used by patent trolls. IPRIntellectual Property Rights. Usually associated with formal legal rights such as patent, trademark, and copyright. Intellectual property is a broader term that encompasses knowledge, information, and data considered proprietary whether or not it is formally protected. is a procedure created by the America Invents Act that allows limited challenges to patents. These challenges are heard by the Patent Trial and Appeals Board instead of a district court. IPRs are intended to be faster, cheaper, and more accurate than court hearings, and so far, they’ve been just that.
Since Director Lee took over as Acting Director, the time from filing to a first action by the Office has dropped from over 18 months to just over 16 months, a decrease of 12%. This happened even though filings have increased by over 5% during the same period. The PTOPatent and Trademark Office, informally used interchangeably with USPTO. has significantly reduced the patent backlog from a high of 750,000 in 2009 to 550,000, all the while processing an average annual filing of 600,000, which increases by 4% yearly.
There have been a number of ongoing issues identified by the inspector general for the Department of Commerce, the Government Accountability Office, and others. The USPTO’s response has been to take immediate action and make improvements. For example, since allegations of employee time and attendance abuse came out, the USPTOUnited States Patent and Trademark Office. See also PTO. immediately implemented new training and reporting requirements for examiners and supervisors.
The list goes on. Michelle Lee has worked to create a generally transparent USPTOUnited States Patent and Trademark Office. See also PTO. that listens to stakeholders in every industry, listens to the courts, and works hard to do its job better. Her staying on means that the programs she’s started will continue, and that’s a good thing for American businesses and innovators.
It’s also important to have some stability in the patent world. Patent law has been changing quickly over the last few years. The America Invents Act changed some fundamental parts of patent law. For example, we went from a “first to invent” system to a “first inventor to file” system. The AIAAmerica Invents Act of 2011. AIA made modest reforms, most notably moving the U.S. to a first-inventor-to-file system more aligned with foreign practice, but also including expanding prior user rights to all patent-eligible subject matter, and instituting a post-grant review proceeding. also created new forms of post-grant reviewA procedure by which a third-party may contest issuance of a patent at the USPTO within a short period (9 months) after issuance. Introduced to the U.S. by the AIA. The EPO has a similar procedure., such as inter partes reviewAn adversarial procedure created by the AIA for challenging patents. Intended to be similar to a court proceeding, the parties argue before an Administrative Patent Judge, not a patent examiner. The challenger must show a reasonable likelihood of successfully invalidating one claim before the PTAB will agree to grant a petition for review. and covered business method review; IPRs have proven to be a powerful tool for getting rid of bad patents. At the same time, the Supreme Court has been unusually active in patent law, issuing decisions on subject matter eligibility, damages, and a number of other aspects.
Michelle Lee has navigated the Office through this changing landscape. Keeping her as Director would mean that a key part of the patent world is steady.
As Martha Stewart might say, “It’s a good thing.”