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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