Petition Argues Patent Invalidation Judges Do Not Need Senate Approval

(August 5, 2020 – WASHINGTON, D.C.) – Andrei Iancu, Director of the U.S. Patent and Trademark Office (USPTO) under President Trump, has filed a petition for certiorari to the Supreme Court against dozens of patent owners whose patents were invalidated by the Patent Trial and Appeal Board (PTAB), a division of the USPTO created under the 2011 America Invents Act. The controversial board has invalidated 85% of the more than 2,500 issued patents which they have reviewed. A lower court held that the Administrative Patent Judges (APJs) that constitute the board were selected in violation of the Appointments Clause of the Constitution, as they were not confirmed by the U.S. Senate as required. Inventors have raised concerns about the qualifications and biases of the 260 APJ’s, many of whom were selected while the former head of patents for Google was leading the USPTO during the Obama administration. The Chief APJ at the time quipped that it was their job to be a “death squad” for patents.

The USPTO argues in a companion case Athrex v. Smith & Nephew that APJ’s are not Officers of the United States that require Senate confirmation because the Director exercises sufficient control over the APJs. An example cited is panel-stacking, whereby the Director assigns additional APJ’s to a rehearing until they muster enough votes to override the first decision. The lower court did not accept those arguments, so the USPTO (along with the DOJ) have asked the Supreme Court to resolve the controversy.

Gene Luoma of Duluth was granted patent US 6,775,873 for his Zip-it drain cleaner, a 2-foot long flexible plastic wand with barbs along the edges. When the wand is shoved down the drain and pulled back up, the barbs latch onto the hair and pull it out, leaving the drain clean. Other companies copied his design and filed a request at the USPTO objecting to the patent. A panel of 3 APJs at the USPTO invalidated the patent, holding that it was too similar to device from 1906.

Inventors like Gene were given new life by the lower court decision granting him a new trial before an impartial panel of judges. Furthermore, Director Iancu had indicated that he would be changing course at the agency and gave a series of speeches extolling the importance of inventors and the value of reliable patent rights. Thus, they were shocked and devastated when the Trump appointee stepped in to defend the structure .

Josh Malone, volunteer at US Inventor says, “The USPTO has been reconfigured to protect large corporations from the threat of inventors with better ideas – there is no justification for denying inventors the right to a hearing before a qualified and impartial judge”. Malone’s patent for Bunch O Balloons was invalidated when USPTO APJs held that he did not adequately describe how full the balloons must be when they release from their tubes.

US Inventor has filed an amicus brief in the case arguing that Congress must correct their mistake in the 2011 America Invents Act to require that APJs be appointed by the President and confirmed by the Senate like all other judges. In the alternative, they suggest that the Supreme Court could declare decisions rendered by APJs to be advisory, leaving the final decision to be made by a properly confirmed judge.

Local Inventors – Local or industry-specific inventors are available for interview or statements. Thousands of inventors have lost their patent rights by the hand of the unconstitutionally appointed patent invalidation judges. They reside and own(ed) businesses in every state with inventions in every field of technology.

About US Inventor – US Inventor, Inc. (“US Inventor”) is a non-profit association of inventors devoted to protecting the intellectual property of individuals and small companies. It represents its 13,000 inventor and small business members by promoting strong intellectual property rights and a predictable U.S. patent system through education, advocacy and reform. US Inventor was founded to support the innovation efforts of the “little guy” inventors, seeking to ensure that strong patent rights are available to support their efforts to develop their inventions, bring those inventions to a point where they can be commercialized, create jobs and industries, and promote continued innovation.