by Alex Moss | September 14, 2021

The U.S. Patent and Trademark Office (the Patent Office) is a government agency whose duty is to the public. It is not a private company and does not have “customers.” But it relies on fees private companies pay for granted patents. Unsurprisingly, it grants a lot of patents: more than six hundred thousand a year. The private companies funding the Patent Office’s operations have attorneys to represent their interests there, but the public has none. As a result, the Patent Office caters to private companies at the expense of the public interest. 

The problem is worse than ever thanks to the disproportionately pro-patent policies of the previous administration. This system needs to change. 

 Especially given the COVID-19 pandemic, the stakes are too high today for the Patent Office to continue prioritizing the preferences of patent owners at the expense of the public’s needs. Thanks to decades of scientific research, we have the tools we need to develop and deliver vaccines and therapeutics that can slow the spread of COVID-19 and save lives. Meanwhile, advances in computing and telecommunications allow people to do work, go to school, get medical care, and communicate with friends and family safely, reliably, and affordably. But essential technologies like genetic testing and videoconferencing will not be as accessible and affordable as they are today unless we can roll back some of the last administration’s changes. 

Patents have already impeded the fight against COVID-19. The Patent Office has granted numerous telehealth patents that threaten to impede access to computing and networking technology that has existed for years. Big companies have already asserted these patents against smaller care providers for activities related todiagnosing COVID-19 and treating patients remotely. But we have only begun to feel the effects of the former Patent Office Director’s unbalanced approach: for the next twenty years, we face a minefield of wrongly granted patents and arbitrary restrictions on challenging them under the America Invents Act.

After years of catering to patent owners, we need the next Director to prioritize the public’s interest. The American people are the source of the powerful rights patents and the ones wrongly-granted patents harm. The next Director must strike an appropriate balance between providing incentives for private investment and public access to knowledge. That has never been truer than it is today as we work to overcome the COVID-19 pandemic and rebuild our economy.

Here are five concrete ways the next Director can make the Patent Office more fair and effective for everyone. 

1.    Restore the America Invents Act. 

Ten years, Congress created new administrative proceedings so that members of the public could challenge wrongly granted patents without going to court. Former Director Iancu abused his discretion to make these proceedings less effective, accessible, and fair. The next Director must undo those changes and restore the proceedings as the American people’s elected representatives intended. 

2.    Make the Patent Office’s operations more transparent.

Patents exist to ensure public access to knowledge; there should be no secrets between the patent applicants and the agency. For example, the Patent Office should require examiners to make recordings or transcripts of interviews with applicants so that the public knows what they do. It should also give the public access to all agency materials that examiners use to evaluate patent applications.

3.     Broaden membership in existing mechanisms for public participation and outreach. 

For example, the Patent Public Advisory Committee, which purports to “represent the interests of diverse users” of the Patent Office, includes representatives from private companies, like Eli Lilly and Facebook, but no representatives of consumers, patients, research scientists, open source developers, start-ups, or domestic manufacturers. The membership of the Committee should reflect and represent all Americans whose lives and livelihoods depend on technology.

4.     Create an Office of Public Outreach and Accessibility Ombudsman. 

The Patent Office has an Office of Stakeholder Outreach and Patents Ombudsman that serves patent applicants and owners but no similar office that serves members of the public. We need the Patent Office to devote specific resources to broadening public participation, ensuring transparency, and responding to submissions from the public, such as Freedom of Information Act requests and prior art references relevant to pending applications.      

5.     Raise ethical standards to prevent conflicts of interest.  

The administrative judges who decide whether to sustain or cancel granted patents in  review proceedings are mostly patent lawyers who come from and return to private companies. The Director should require judges to recuse themselves from patent review cases brought by or against their former employers and clients—and the Director should lead by example by recusing him or herself in similar cases.