A Knight to Slay the Mythical Patent Troll Narrative

USPTO Director Andrei Iancu unloads on Patent Troll Rhetoric Propagated by Silicon Valley’s Patent Kings

By Ryan Grace

On October 18, 2018 new USPTO Director Andrei Iancu set forth sharp criticism of the “patent troll” narrative that has been the headline of many policy decisions and law changes around America’s intellectual property system.  For around 10 years laws and policies have been passed that have essentially weakened the strength of some patents and made patents more difficult to enforce…all in fear of the mythical “patent troll” propagated by some of the largest technology companies in the world.   Arguably, these changes made it easier for large technology companies to squat on the patent rights of others without recourse.  Well, there is a new knight in town and his name is Andrei Iancu.  No other acting PTO director has so vehemently dismembering a term “patent troll”.  Mr. Iancu’s speech will undoubtedly earn him great praise among independent inventors and small businesses, but his speech also puts him in the cross hairs of big businesses in the high-tech community who have used “patent troll” rhetoric to try to weaken the system for independent inventors and small business.

Mr. Iancu spoke during a dinner for the Eastern District of Texas Bar Association and minced no words regarding the damage that the “troll” narrative has had on innovators. “As you all know, for many years now the dialogue surrounding IP has devolved into a discussion about – shall we say – scary monsters?” he stated. “You know the green creatures that dwell under bridges or lurk in the forests and are poised to terrorize anyone who dares take the risk of venturing out into the innovation ecosystem.”  Mr. Iancu analogized patent troll tales to classic fairy tales.  During his speech he specifically referenced Little Red Riding Hood, and then added: “What an odd message to deliver in America in particular, a country of risk-takers, entrepreneurs and inventors. An odd message indeed, especially given the success of the American patent system over time.”

He reasoned that pushing “troll” stories was particularly odd when, “they’re being told to the people who have been responsible for the greatest advances in human history”. He followed that by stating that: “The narrative must change. And, at least as far as the USPTO is concerned, it has now changed.”

“What an odd message to deliver in America. . . especially given the success of the American patent system over time.”

Mr. Iancu then discussed the history of some specific inventors.  Mr. Iancu spoke about Bob Metcalf who invented Ethernet and started 3Com Corporation.  Striking fear into these inventors with, “ugly monster stories,” the PTO director exclaimed, “drives towards policies that inhibit innovation”. “Scaring our inventors and our entrepreneurs is harmful,” he stated. “And scaring our government officials drives towards over-broad policies that, on balance, inhibit innovation.” He challenged the big tech to work with the PTO to find “narrowly tailored measures to eliminate only the faults in the system”.  In what was likely the most profound statement Mr. Iancu said, “Remarkably, in what I believe amounts to Orwellian “doublespeak”, those who’ve been advancing the patent troll narrative argue that they do so because they are actually pro-innovation. That by their highlighting, relentlessly, the dangers in the patent system, they actually encourage innovation. Right!”

IP stakeholders and policy makers have gone too far leading to an over-correction.

Mr. Iancu’s speech will put him directly in the cross hairs of the big-tech community.  He also indicated that he welcomed their freedom to express their point of view and to argue for the dilution of the U.S. patent system.  Yet, he demanded that “they should be up front about it”.  “Those who spend their time and money relentlessly preaching the dangers of monsters lurking under the innovation ecosystem, and who work exclusively to identify only faults in the system, are unconvincing when they argue that they are doing so for purposes of increasing innovation.”  Iancu declared that by vehemently targeting “trolls” and their “bad patents”, IP stakeholders and policymakers have gone too far leading to an over-correction. He topped off his speech by demanding that “this must now end, and we must restore balance to our system.”

 

Rebecca Bortolotti