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By Tony Dutra
United for Patent Reform, an organization featuring Silicon Valley heavyweights such as Cisco Systems Inc., Alphabet Inc.'s Google and Intel Corp., called on President Donald Trump and Commerce Secretary Wilbur Ross to retain Michelle K. Lee as Patent and Trademark Office director.
The organization commended Lee for being able to “expertly balance the needs and interests of all the stakeholders within the very diverse community that the USPTO serves,” in a letter dated April 25. “We believe that the American economy would greatly benefit from her continued leadership, or the leadership of a USPTO Director committed to the priorities she has instituted and championed.”
The priorities listed in the letter were issuing high-quality patents, protecting programs that weed out invalid patents and preventing abusive patent practices.
Lee was appointed by former President Barack Obama in 2015 and has stayed in office through the Trump administration’s transition period. However, Ross has been interviewing replacement candidates, according to sources familiar with the process.
The call for maintaining PTO quality initiatives is unlikely to generate opposition, but the group’s support for weeding out bad patents is more controversial.
The debate focuses on PTO procedures enabled by the America Invents Act of 2011. The act set up new ways for alleged infringers and others to challenge patents at the PTO’s Patent Trial and Appeal Board, typically in lieu of a defense in court.
United for Patent Reform’s letter lauds the AIA’s inter partes review (IPR) proceeding, which allows patent challenges based on prior art that the original examiner may have missed or inadequately reviewed. “It is paramount that the USPTO and its leadership steadfastly maintain this important program and reaffirm the intent of Congress when it passed AIA,” according to the letter.
But opponents think the PTO went too far in implementing the AIA. They see a change of director as way to revise PTAB rules and procedures to make the IPR challenge harder and allow patent owners a better chance of success. Stakeholders’ criticism of the PTAB generally extends to Lee.
Though Lee was not in office when the rules were first promulgated in 2012, she has asked for input on how to improve them. Some stakeholders were particularly disappointed when a new rules package announced in April 2016 failed to address the two issues patent owners cared about most: a broad reading of patent claim terms that makes them easier to reject, and the PTAB’s high hurdle for assessing motions to amend claims during trial.
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