USPTO Director nominee Andrei Iancu has called for balance in the US patent system and stressed that, if confirmed, one of his priorities will be to bring stability and reliability to what remains the world’s most dynamic IP market.
Iancu was speaking yesterday during his confirmation hearing before the Senate Judiciary Committee. This gave many in the patent community their first opportunity to hear from the patent litigator who, barring any last minute hurdles, seems assured of being confirmed. His calls for balance will no doubt be welcomed by those, such as the small inventor community, who feel that the system has been tilted against them in recent years.
In response to a question from Senator Coons, Iancu admitted that he was well aware of some of the strident criticisms levelled against the post-issuance review process - a particular sore point for some patent owners - and admitted that, in some cases, those criticisms were justified. “It’s true that the system is heavily criticised and that’s important to note because if the inventor community does not have confidence in the IP system then investments do not get made and inventions slow down and the economy doesn’t benefit,” he commented. He took a similar line when asked about patent eligibility in the wake of the recent string of Supreme Court cases which have thrown the issue into some level of confusion – particularly with regard to medical diagnostic and computer implemented inventions.
In his opening statement, in another comment that will play well with many patent owners, Iancu revealed that he appreciated the different dynamics at play within the rights-holding community and stressed the need for fairness. “The accused infringer in one case maybe the IP owner in another and a patent owner in one area of technology or science maybe a member of the public trying to design around someone else’s patent in another area,” he asserted. “The playing field must be even for all.”
Iancu’s call for balance and reliability will please the vast majority of patent owners and his background certainly suggests that he might be particularly well placed to help deliver a more equitable system. Perhaps more than any other recent candidate for director he does not come with any ties to a particular industry or interest group. He is not seen as being particularly close to Silicon Valley (as critics always contended Michelle Lee was) or as coming from the life sciences community (as another candidate for director Phil Johnson does).
In his comments to the committee, Iancu also revealed that if confirmed he will explore the possibility of sitting as a PTAB judge. Under the AIA statute which created the PTAB, the director is a member of the board and therefore technically able to oversee an inter partes review (IPR) or other post-issuance review procedures as an administrative law judge. Previous directors have overseen post-issuance reviews — David Kappos did it for instance as a member of the Board of Patent Appeals and Interferences, the predecessor to the PTAB — but as a patent litigator Iancu could bring a certain skill-set to assessing where changes should be made to the proceedings.
When asked to address the problem of patent troll litigation, which Senator Grassley said remained a concern for parts of the patent community, Iancu backed away from calling for further legislative action. “Any abuse of the IP system should not be tolerated,” he said initially, before pointing out that Congress and the courts had already taken steps to try to address some of the perceived problems. That meant, he said, “that we should see how that recent development in the case law and some of the recent acts of Congress are working out and take stock of that and see whether more needs to be done.” He emphasised again that balance was crucial in assessing whether any action needs to be taken and warned against what he called “throwing the baby out with the bath water”.
That answer perhaps summed up his performance — he gave away very little while doing enough to keep various players in the patent community satisfied. Despite an impressive track record as a patent litigator and several years as the managing partner of Irell & Manella, Iancu is not a well-known figure in DC patent circles and yesterday’s outing will not change that. It was, in short, a classic confirmation hearing performance, showing that he had been well drilled on what to expect.
Like the top class lawyer he is, Iancu kept to his brief; but if the key points of his appearance were to be briefly summarised, it would be fair to say that: he seemed opposed to further anti-troll legislation, at least for now; recognised that there are serious issues with eligibility following recent Supreme Court cases; acknowledged that there is widespread disquiet with the IPR regime; and wanted to make clear that he understands inventors are a vital and positive force in the US, and that they need incentives and protections to do their work effectively. But how the translates into action once he takes up his role remains to be seen. Trademark practitioners were probably unsurprised that he said almost nothing about their side of the USPTO aisle.
Iancu was forced to wait patiently for his hearing to begin as his confirmation was held alongside several nominees for federal judgeships. Senators sparred in the early stages over two of those nominees which have attracted controversy in some quarters. That made the early exchanges between the committee members relatively fractious, but it meant that when the time came for Iancu to take the oath, read his statement and start answering questions, it was more than two and a half hours after the hearing had begun and much of the energy had been taken out of the room.
Just two senators, committee chairman Senator Grassley and Senator Coons, the author of the STRONGER Patents Act and one of the few legislators with a keen interest in the functioning of the patent system, remained to ask questions. That apparent lack of interest from many committee members and the relatively benign questions that Iancu faced suggest that his confirmation should be straightforward. The job awaiting him is anything but.