Saturday, 31 January 2015

An Energetic, Engaging and Balanced Symposium on Patent, Copyright and Trademark Trolls PART II

Andrew Byrnes, Chief of Staff, United States Patent and Trademark Office, was the lunch and keynote speaker.  His speech was entitled, “Standing Sentinel Over Innovation: The Importance of a Balanced and Effective IP System.”  The following is a partial description of his thoughtful speech. 

Mr. Byrnes noted the growing economic significance of intellectual property—accounting for 20% of American jobs.  He asks the important question: “How do we know if we are standing sentinel over innovation or just standing in the way?”  He noted that, as President Obama did in a Town Hall on Innovation, we need a balanced IP system.  He notes that patent litigation expenses are high and the asymmetry of litigation expenses push the accused infringer toward settlement.  Some of the other costs include the “risk of disrupting relationships,” “risk of patent counterclaims,” “discovery burdens and costs,” and availability of attorney fees.  He states we need to change how we think about the problem.  We should not think about “Who is the type of patent holder; How does the patent holder intend to use the patent”; and “What is the type of accused infringer.”   He thinks the question is does the system stop “abusive behavior.” He states that the USPTO is thinking about these issues—not only issues associated with procurement of patents.   He reviewed legislative, judicial responses, and administrative actions, and noted that we have to look at the “entire landscape” concerning the problem.  He noted that the USPTO is “committed to quality.”  Interestingly, he noted that “quality” includes an analysis of whether the system “encourages innovation.”  Some of the initiatives at the USPTO include: “improved patent claim clarity,” including a glossary pilot system; “expanded technical training for examiners”; “greater international harmonization to lead to more certainty for American inventors;”  “prior art crowdsourcing;” “IT improvements;” and “Pro bono & pro se assistance.”  He also noted that the UPSTO is “ramping up its patent quality team” through a new “Deputy Commissioner for Patent Quality,” who has recently been named.  Finally, he stated that the Patent Trial & Appeal Board has a large role in improving quality through the new AIA post grant proceedings.  He stated that they are “faster;” “more efficient;” and “less expensive” than district court litigation.  For fiscal year 2014, for inter partes review, there were 557 trials instituted.  He noted that the PTO is “calling balls and strikes.”  Some patent claims are upheld and some are struck down.   He stated that the USPTO goal is to hire 60 more administrative judges in fiscal year 2015.  Finally, he discussed “promoting American business abroad” and noted that “80% of [the world’s purchasing power [is] overseas.”  He stated that the PTO is working on “support[ing] trade negotiation” and supporting work towards “new trade agreements, e.g., Trans-Pacific Partnership.”   The USPTO is also working on engaging stakeholders through education and outreach.  Mr. Byrnes' full presentation can be found here

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