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Dictators-property-rights-and-the-ptab. Why-the-aia-must-be-repealed....

http://www.usinventor.org/2016/12/02/dictators-property-rights-and-the-ptab-why-the-aia-must-be-repealed/


Prior to the America Invents Act

Prior to the America Invents Act, the job of invalidating patents was handled by lifetime appointed Article III judges who do not have a career path and are not directly subjected to political pressure. This separation of power and the American construction of the federal courts brought mostly fair decisions on the validity of patents. For over 200 years, this system worked and created the most productive economy the world had ever seen. When the system seemed out of balance the solution in the 1980s was to create a specialized Article III court, the Federal Circuit. By doing so the integrity of property rights were maintained through a continued structure of checks and balances.

But the America Invents Act changed the property right system. It created PTAB procedures designed to invalidate patents in the USPTO, an agency of the president. The president, by and through the examiners and officials that work for the patent office, has always had the power to create a patent right, but now the same president, by and through administrative judges now also has the power to take the patent right away. This is akin to the dictatorial power of a third world country. Because of this concentration of power, the president controls the complete strength and validity of a property right. It is no secret that President Obama was closely aligned with Google, so it shouldn’t surprise anyone that those former Google executives throughout the Obama Administration adopted policies and views in synch with those of Google. Those Google friendly policies favored a few at the expense of virtually everyone else. But that is how the preferences of the president, and his allies, filtered through the patent system to the detriment of many.

The unfortunate reality is that this new power to grant and take a property right based on executive fiat undermines funding of new technologies and therefore undermines our job creation engine. A patent’s life spans the terms of at least three presidents, so every patent will be made stronger or weaker at least three times. A property right system will never be effective if the strength of the property right is a political dog’s wagging tail. How can anyone invest in any property right if nobody knows how strong that right will be in the future?