Remember how excited you were as a teenager to get your driver’s license? The freedom it promised. The milestone it represented. You were becoming an adult.
You paid for and took the stupid driver’s education course. You studied for their stupid written exam. You practiced for their driving exam.
You then studied for the stupid Department of Motor Vehicles (DMV)’s stupid written exam. You practiced for their driving exam.
You passed them all. And then - finally - the government issued you a license to drive.
Shortly thereafter, someone challenged the validity of your license - because they don’t like anyone under thirty driving.
The DMV bizarrely holds a review hearing - on the license it just issued you. That hearing - is overseen by people who don’t think anyone under thirty should be driving. Sort of like the baseball umpire also pitching for the other team.
And then the DMV - which just made you jump through a series of hoops to get your license - revokes your license.
How idiotic would that be?
Well, you don’t have to imagine how idiotic. Because this is exactly what happens ALL THE TIME - to US patent holders.
But just wait - it’s even stupider than it sounds.
The Constitution’s Copyright Clause mandates the federal government protect Intellectual Property (IP) - patents, copyrights and trademarks. So Congress created the US Patent and Trademark Office (USPTO) - to review applications and issue the relevant protected licenses.
Patents, copyrights and trademarks are, of course, licenses to engage in the respective protected IP activities. Just as a driver’s license allows for that protected activity.
Our IP system was outstanding for almost the entirety of our nation’s history. And not at all coincidentally - our economy became the greatest in the history of humanity.
Except this is DC. If it ain’t broke - DC will “fix” it.
DC in its infinite idiocy passed in 2011 the exceedingly awful America Invents Act (AIA). Under the rubric of “reform.”
The AIA created the even-more-exceedingly-awful Patent Trial and Appeal Board (PTAB).
The PTAB turns the USPTO - the agency charged with issuing patents - into a patent-murdering machine.
It’s as if the government is saying:
“The millions (billions) of dollars you spent researching and developing your IP? And all the hoops through which we made you jump - to get the patent we FINALLY just issued you? Just kidding - we’re rescinding it.”
This is WAY worse than rescinding drivers’ licenses.
Think this might hurt the economy? You would be correct.
The PTAB is a titanic crony-fest. It is Big Government and Big Business - working to eviscerate the US patent system:
“‘Learn The Real Facts About PTAB – Don’t Get Misled By The Myths:
“‘PTAB is used almost exclusively by large multinational corporations to attack patents of much smaller competitors. Apple, Google, Samsung, Microsoft, Intel, Comcast, and Cisco are top filers. Smaller companies occasionally attempt to use the PTAB, but usually adds a lot of expense without resolving the dispute….
“‘PTAB adds an average of $450,000 for each challenge filed. Most disputes involved multiple patents, so the additional cost usually exceeds $1M. If the inventor survives PTAB, they have to fend off similar challenges in the regular court.’
“‘Angry Inventors Accuse Patent Office’s Appeals Board of Favoring Big Tech:
“‘Since its creation by Congress in 2012, the board has angered the inventing community, which says the review process is biased.
“‘One judge, for example, represented Apple Inc. in private practice and then ruled in favor of the tech giant 17 times after joining the court….
“‘Eyebrows were raised this summer when a lawyer representing the patent office in a federal court appeal of a board decision acknowledged that the agency had added extra judges to reviews in order to achieve the desired outcome….’
“‘A Story of Ethics and Optics: Former PTAB Judge Matt Clements Now Works for Apple:
“‘(Matt) Clements represented Apple, Inc. as patent infringement defense counsel up to his appointment as an (Administrative Patent Judge) APJ in March 2013.
“‘Clements then proceeded to preside over several dozen post grant challenges brought by Apple. Not surprisingly, Apple did extraordinarily well in those challenges….’
“‘(W)hy has the USPTO still not created ethical rules or a code of conduct for APJs?’"
Because this is DC - that’s why.
Oh: And the utterly corrupt PTAB - is also entirely unconstitutional.
The Supreme Court has rightly ruled the PTAB is the Executive Branch - pretending to the be the Judicial Branch. Which violates our Separation of Powers.
But this is DC - where idiocy reigns supreme. So the Supreme Court issued the ruling - but didn’t kill the PTAB. It instead made it even worse an d more unconstitutional.
The Supreme Court Almost Rules Wisely. Almost:
“The following ruling showed the Court dipping its toe in the warm waters of Judicial Sanity - but then quickly withdrawing the digit.
“‘Supreme Court Says Over 200 Patent Judges Were Improperly Appointed:
“‘The Supreme Court ruled on Monday that more than 200 administrative judges who hear patent disputes, some of them over billions of dollars, had been appointed in violation of the Constitution.’
“These judges are indeed unconstitutional. Because they are judges - in the Executive Branch. Which means the Executive Branch is pretending to be the Judicial Branch. And that’s a bit of a Separation of Powers problem….
“Now that we know how exceedingly awful the PTAB and its judges are - let’s return to the Supreme Court’s ALMOST issuing a good ruling:
“‘The solution, a fractured majority of the court ruled, was to give the director of the U.S. Patent and Trademark Office the power to review the judges’ decisions in cases….’
“Except that is NOT a solution to these judges being unconstitutional.
“The Court ruled these Executive Branch judges are illegal - because they are in the Executive Branch. But then posited as a “solution” - having another member of the Executive Branch review their rulings.
“The Court’s ‘solution’ adds another layer of unconstitutional bureaucracy. It does not provide a remedy for the unconstitutionality the Court its own self identified.”
And ALL of this idiocy?
Is what today passes for IP policy in DC.
No wonder this city is murdering the nation.