Former judge wants to head patent office, says he’ll “Make Patents Great Again”
Position listed as "vacant" as candidates vie for Trump's top patent spot.
JOE MULLIN - 2/9/2017, 1:38 PM
Judge Randall Rader.
Gene Quinn
Who's the director of the US Patent and Trademark Office at the moment? It's a tougher question to answer than you'd think.
A patent blog that closely watches USPTO internal politics, IP Watchdog, raised the question earlier this week. Reports last month from Politico and The Hill indicated that Michelle Lee, a former Googler who was appointed in 2014 and is favored by the tech sector, would stay on under the administration of President Donald Trump.
Those reports, published right around Trump's inauguration, seem much less reliable now. IP Watchdog reports that Lee continues to be seen on the 10th floor of the Madison building, where the USPTO director's office is. Yet others continue to advocate for themselves, and on February 3, Lee canceled a scheduled speaking appearance in San Francisco. Since at least February 6, the Commerce Department's website has listed the position of USPTO Director as "vacant" (screenshot by IP Watchdog).
In an e-mail this morning to Ars Technica, a USPTO spokesperson said only, "I cannot provide a comment at this time."
"Sources tell me that the USPTO was prepared last week to issue patents with the signature of Drew Hirshfeld, who is the Commissioner of Patents and seems to be currently in the position of Acting Director," wrote IP Watchdog author Gene Quinn. "At the last minute, however, a decision was made to revert back to Michelle Lee’s signature."
Quinn speculates that the lack of clarity during this period could turn into a legal quagmire, since patent statutes require every patent issued to have the director's signature placed upon them. Though unlikely to prevail in this manner, theoretically, patent litigators could try to invalidate patents issued in this interim period because they didn't have the right signature.
“Make Patents Great Again”
On February 2, the Intellectual Asset Management (IAM) Blog published an interview with former top patent judge Randall Rader, who said he's still in the running for the top USPTO slot.
"I possess the energy, experience, and ability to 'make patents great again' as part of the campaign to 'make America great again,'" said Rader in a statement to IAM. "The President seems to be emphasizing jobs. I have said often that one key to protect US jobs is to protect the intellectual property that creates and sustains those jobs... I hope that I get the chance to serve this Administration at the USPTO."
Rader served as chief judge for the US Court of Appeals for the Federal Circuit, which hears all patent appeals. He's a proponent of wide-ranging patent rights and was ultimately on the losing side of the Federal Circuit's fractured 2013 Alice Corp. decision, for which he penned an opinion extolling the need for software patents.
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"The combination of new software and a computer machine accomplishes wonders by reducing difficult processes—like determining where someone is on the earth, instantly translating Chinese to English, or performing hundreds of functions in a hand-held device called a 'smartphone'—into a series of simple steps," Rader wrote.
Ultimately, the US Supreme Court chose a stricter test for what kinds of patents are allowable, and hundreds of software patents have been invalidated under the high court's Alice precedent.
Rader stepped down from the court in 2014 after what he called an ethical "lapse," when he sent an e-mail praising a patent lawyer who appeared frequently before the court.
In addition to Rader, Philip Johnson, a top IP lawyer at Johnson & Johnson, was reportedly in consideration for the job of USPTO chief. Johnson was also considered as an Obama pick in 2014, but he was reportedly put aside in favor of Lee after an outcry from tech sector lobbyists.
If either Johnson or Rader is nominated, it could indicate a preference for stronger patent rights in the Trump administration. Trump's views on patents have remained unclear so far.
AI
