dddd
PublishedAugust 29, 2018

USPTO Strategic Plan Focuses On Patent Owners, Ignores Public

Last week, the U.S. Patent and Trademark Office (USPTO) posted a draft of its 2018-2022 Strategic Plan.  While many of the goals set out in the plan are important—for example, improving the ability of examiners to obtain the best prior art during examination and enhancing the information technology the USPTO makes available both internally and externally—the Strategic Plan illustrates serious flaws in the USPTO’s approach to achieving its mission.

At the heart of these flaws is the USPTO’s embrace of an inappropriate viewpoint.  The USPTO treats applicants as “customers,” catering to them first—sometimes at the expense of the public.  The USPTO first took this approach in the early 1990s, when it was first required to fund agency activities with user fees.  The agency most explicitly adopted it during the dot-com period, stating that the “primary mission of the Patent Business is to help customers get patents.”  While the USPTO later retreated from this statement, the viewpoint appears to be re-emerging in the wake of the USPTO’s authorization to set its own fees.  In the 2014-2018 Strategic Plan, the word “customer” appears 12 times; in the draft 2018-2022 Strategic Plan, the word appears 70 times.  The USPTO is not a business. Taking a view that treats applicants as customers implicitly places their needs and desires over those of the public.

This has real harms.  Prioritizing applicants runs the risk of granting patents that shouldn’t have issued, tying up broad areas of technology and rendering known technology unusable.  While invalid patents can be challenged, challenges remain expensive and time-consuming.  This is particularly problematic when invalid patents are granted in newly developing areas like artificial intelligence, autonomous vehicles, augmented reality, or additive manufacturing, where smaller innovators may not have the resources to challenge patents and may decide to innovate in other areas—or not at all.

The U.S. patent system was created in order to promote progress, not simply to issue patents.  The USPTO’s strategic plan should focus its efforts appropriately.

Josh Landau

Patent Counsel, CCIA

Joshua Landau is the Patent Counsel at the Computer & Communications Industry Association (CCIA), where he represents and advises the association regarding patent issues.  Mr. Landau joined CCIA from WilmerHale in 2017, where he represented clients in patent litigation, counseling, and prosecution, including trials in both district courts and before the PTAB.

Prior to his time at WilmerHale, Mr. Landau was a Legal Fellow on Senator Al Franken’s Judiciary staff, focusing on privacy and technology issues.  Mr. Landau received his J.D. from Georgetown University Law Center and his B.S.E.E. from the University of Michigan.  Before law school, he spent several years as an automotive engineer, during which time he co-invented technology leading to U.S. Patent No. 6,934,140.

Follow @PatentJosh on Twitter.

More Posts

The Judicial Conference Takes on “Judge Shopping”

On March 12th, the U.S. Judicial Conference announced policy recommendations aimed at putting an end to “judge shopping,” the much-exploited practice by which litigants choose the judges who hear ...

Guest Post: Time to Shine Light on Dark Third-Party Litigation Funding

This post, written by Jerry Theodorou, initially appeared in the R Street’s Real Solutions Blog A pitched battle between proponents and opponents of third-party litigation financing (TPLF) has en...

Another Litigation Funding Dispute

In what has become a recurring topic on Patent Progress, another dispute between a patent troll and a litigation funder has emerged. This time, it is between the Irish NPE, Arigna Technology; its law ...

Subscribe to Patent Progress

No spam. Unsubscribe anytime.