One of America's leading authorities on technology and telecom policy, Motley is a writer, television and radio commentator, political and policy strategist, lecturer, debater, activist, and policy advisor to The Heartland Institute.
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The Barack Obama Administration was awful for America, We the People – and the public policies that make the awfulness possible. In ways and directions too numerous to count.
America is (allegedly, supposed to be) a free market economy. To make it work – We the People need money. Capital – to fuel the capitalism.
We are in the very early stages of the Information Age. Where less and less things are physical – more and more are virtual. As we transition from the tangible to the intangible – the protections of the intangible are of greater and greater import.
Stealing something digital – should be treated at least as harshly as stealing something physical. Illegally downloading music – should be treated at least as harshly as stealing the same music on compact disc (CD). Intellectual Property (IP) – is property.
If people don’t get paid to create – they will very quickly stop creating. Because: Human nature. No capital for capitalism? No capitalism.
Perhaps of even greater import: Government shouldn’t actively work to undermine the value and protections of IP. To do so is too undermine – nay, strip-mine – our economy in the Information Age.
Oh – and it specifically, violently violates the Constitution:
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
Government is supposed to be in the IP protection business. Obama – with the stupid assistance of Congress – put the government into the IP destruction business.
Behold the Patent Trial and Appeal Board (PTAB) – bizarrely located in the United States Patent and Trademark Office (USPTO).
“DC has reverse-engineered the government entity responsible for issuing patents – to now destroy patents. Patents that government entity its own self had issued – are now destroyed by that same government entity.
“This is insane.
“This is the USPTO saying ‘Congratulations, you have a patent.’ And then saying ‘Psyche. We were just kidding.’
“But not until after you took them and the patent they gave you at their word. And done what the Little Guys mentioned above did – spent even more time and money to start businesses and hire people.
“And then the government comes back and yanks the rug – they themselves weaved – out from under you.
“Far too frequently – at the behest of huge companies far larger than are you or I.
“Big Government and Big Business win.
“We the Little Guys – We the People – lose.
“As does our nation – and our nations economy.”
Behold – more huge, anti-patent, anti-capitalism cronyism. From the Obama Administration. What a shocker.
“First, the evidence shows that there is a tendency towards bias among PTAB administrative law judges (ALJs). Many of these judges are drawn from defense law firms that represent infringers, suggesting clear ideological bias. In fact, many of the ALJs have represented the large tech company infringers that institute the IPRs, showing a revolving door with blatant conflicts of interest….
“Second, the bias of ALJs is further complicated by the bias of the PTO director….(T)he PTO director stacks panels to adhere to anti-patent holder policy positions in order to obtain a result in line with PTO ideological patent policy objectives. Not only are the PTAB panels not impartial, but the PTO policies from the director to the PTAB staff are ideologically driven by commercial interests that seek to protect their monopoly profits.
“Third, the overly expansive application of obviousness standards tends to prejudice outcomes against patent holders….
“Fourth, PTAB procedures require qualified counsel. This is very expensive. If a patent holder must spend the equivalent of three average American houses ($188,000 x 3) on counsel to defend a patent in an IPR, poorer patent holders, which may include virtually all independent inventors and angel funded small entities, are excluded from the process. These extremely high costs alone are responsible for the conversion of the U.S. patent system from a democratic model accessible to all to an Aristocratic model available only to a few. These onerous costs impose a high burden on patent holders and deprive due process through high economic demands. It should be no surprise that poorer patent holders tend to lose a vast majority of IPRs, thereby abandoning the system for the majority of inventors. Moreover, since there is no consent required to initiate an IPR, the inventor has no choice in the matter and is compelled to invest large sums defending the patent.
“Fifth,…the reality is that these are not effective against relentless attacks by groups of large companies. For example, a group of companies may seek scores of institution requests with various combinations of prior art. Loose PTAB standards allow systematic harassment of patent holders by groups of cooperating infringers. There is clearly a cumulative abuse from lack of proper estoppel. This group behavior forces adverse outcomes for patent holders.”
US company Qualcomm has been a decades-long driver of wireless phone and Internet invention and innovation. Qualcomm – has been getting CRUSHED by PTAB.
Television inventor TiVo hasn’t fared well with PTAB either.
Lots and LOTS of inventors – have done very, VERY poorly.
It has been truly awful for anyone inventing things. Or hoping to buy or sell invented things. Basically, it’s been awful for everyone – except well-heeled thieves.
Thank God: Enter the Donald Trump Administration.
“(T)he new director of the U.S. Patent and Trademark Office (USPTO) (is) Andrei Iancu. And he is already starting to bring about a much-needed revitalization of the American patent system.
“Soon after taking command at the Patent Office, Director Iancu gave a speech in which he warned that ‘our patent system is at a crossroads.’ For years, he said, ‘our system has been pushed and pulled, poked and prodded. The result is a system in which the patent grant is less reliable today than it should be.’
“He issued a warning: ‘As a nation, we cannot continue down the same path if we want to maintain our global economic leadership. We will not continue down the same path.’
“Instead, the new PTO director vowed to increase the reliability of the patent grant while continuing to improve patent quality. His words have been matched by deeds.
“Indeed, in the few months since taking office, Director Iancu has issued new guidance on patent eligibility forbidding patent examiners from denying a patent unless they have clear and specific evidence that the invention is merely routine rather than truly inventive.
“In addition, he revamped the Patent Trial and Appeal Board to reduce the number of challenges to properly-issued patents and allow more liberal claim amendments by patent owners.
“Finally, he plans to appoint a new and more patent-savvy chief judge of the PTAB.”
ALL of this is VERY good.
Yet another Trump Administration fundamental transformation – of an Obama fundamental transformation.
This is yet another instance of Trump – restoring America to pre-Obama sanity.
So America can get back to leading the world in inventing things.
Because our government is no longer licensing the theft of invented things.
[Originally Published at RedState]