On Friday, the Trump Administration nominated Andrei Iancu to be the next Director of the USPTO.
Mr. Iancu has extensive experience in patent litigation. This includes work on behalf of both patent owners, representing TiVo against a variety of companies, as well as defendants, including representing B/E Aerospace in litigation over aircraft toilet patents. He has also participated in inter partes review proceedings, both on the side of the patent owner and on the side of petitioners. However, he has never worked in government or as in-house counsel in industry.
That fact might present a challenge. The next Director will enter a Patent Office faced with some imminent legislative needs, including renewal of the PTO’s fee setting authority and authorization for certain telework practices. Absent renewal, the PTO will lose its authority to set its own fees, which will create new constraints for an agency that relies on user fees for its own budget.
The next Director will also be faced with challenges to the post-grant procedures created by the America Invents Act, including inter partes review, such as the Oil States challenge in the Supreme Court and ongoing attempts by trolls and others who benefit from asserting weak patents to legislatively weaken post-grant review. Many stakeholders in the patent community will undoubtedly be awaiting Mr. Iancu’s answers at his confirmation hearing regarding his support for these crucially important avenues for review of invalid patents.