Nice optics on US Patent situationThis is a copy and paste from another discussion board I participate in. The author is someone I respect and place value in his comments. Here's a recent comment on the state of affairs in the US Patent Office.
" However, I'd agree with you a lot more were we in pre-America Invents Act (AIA) times. Google ran the Obama White House, visiting at least twice a week. Obama appointed a Googler to run anti-trust and to run the US Patent & Trade Mark office. The only two things monopolies fear - patent and anti-trust enforcement. Michele Kwok Lee, former head of patent strategy at Google was in place as Director of the PTO when the anti-patent troll narrative was at its peak and Big Tech pushed AIA through Congress. SCOTUS is still making hair-brained decisions like Ebay, Mayo, Alice, Oil States, etc which is killing the US Patent system. Obama made a video calling patent assertion "extortion". Something Intel was sued for.
Dir. Lee setup the PTAB (new administrative arm of the PTO) designed to kill the small percentage of commercially viable patents that ever get asserted. PTAB has been busy killing all patents not just "bad" patents (another false narrative). And PTAB has worked much like Google wanted it to. At PTAB it's shoot till you kill. I think its "Li's rule" that says that 98% of patents are not commercially viable - Either the patent is not written correctly or the target market is too small to make it worthwhile to assert. So what happens is, if a patent, in the other 2%, that is commercially viable, is asserted, it's immediately challenged at the PTAB (Patent Trial and Appeals Board). PTAB is basically an end run by Congress and the Executive branch around the Constitution and a seemingly very willing Judicial branchy. We now have political appointees and hirelings running kangaroo courts outside the real judicial branch. These administrative PTAB "judges" were hand picked by Google (Dir. Lee) to be pre-disposed to killing patents. In fact, Dir. Lee was known for stacking panels (adding judges she picked) to a panel until she got the decision she wanted). Former CAFC judges have referred to the PTAB as a patent killing field. Anyone can petition a any patent, any number of times, without standing. In spite of Trump's appointment of Dir. Iancu, the PTAB is still today using a patent claim standard called BRI, which makes it about 10 times easier to invalidate a patent as obvious in light of prior art than the Phillips claim construction standard used in real courts, where they have rules of evidence, ethical standards, judicial job security and independence, not to mention Juries. This has produced startling rates of patent death. Taking into account multiple petitions from multiple entities on the same patent, the effective rate of institution at PTAB is 60% of all patents challenged. Then upwards of 80% of these have been invalidated or otherwise neutered. When taking into account those who settle (for pennies on the assertion dollar) the kill rate has been estimated as high as 96%. Keep in mind that's a percentage of the 2% of commercially viable patents that ever get asserted or used. The US Chamber of Commerace rates patent systems by country world wide. For years the US has been in the top spot. After 6 years of PTAB operation and crazy exclusionary rules from SCOTUS we have fallen to 12th in the world...below some former Soviet Block countries like Hungary. Meanwhile China has been beefing up their patent protection and benefiting from a flow of venture capital, technology, and jobs in their direction. It is indeed a sad state of affairs when Obama's lack of anti-trust enforcement has allowed what some call the #GangOf5 to swell to historic monopoly size. We talking 10 times the market cap in constant dollars of AT&T when it was broken up. Today we have the 5 largest economic monopolies in the history of the world, running (still in spite of Trump's appointments and other efforts) our government thanks to Citizen's United decision which allows monopoly corporation trafficking in elected officials. So perhaps the corporate code of honor at J&J will hold and we'll all benefit from it, but make no mistake, the temptation is there for Gorski to cut corners, in this weak patent protection environment. Let's not forget that J&J is a monopoly and that's sort of what monopolies do, eh?"