Josh Malone, Inventor of Bunch O Balloons

My journey as an inventor has corresponded with the destruction of the U.S. patent system over the last 5 Administrations – Bush, Obama, Trump, Biden, and Trump. The patent system was severely degraded during the Democratic reigns, while the Republicans left it in disrepair. Rumors of the nomination of Goldman Sachs lawyer John A. Squires as USPTO Director indicate the 2nd Trump Administration could deliver more of the same.

In 2006, the Supreme Court rewrote the Constitution to strike inventors’ “exclusive right to their discoveries” in the eBay decision. In 2007 they manufactured a subjective test to declare granted patents “obvious” in KSR. In 2011 Congress created the PTAB division of the USPTO to indiscriminately revoke patents asserted against big tech by their much smaller competitors. In 2014 SCOTUS invented an incomprehensible eligibility test in the Alice decision. In 2017 SCOTUS issued the TC Heartland requiring inventors to file suit in the corporate headquarters of each infringer. Then in the 2018 Oil States decision, SCOTUS declared that patents are no longer property rights but are privileges that can be revoked by the government without a judge or jury. Other changes have made it nearly impossible for inventors to stop infringers or receive fair compensation.

Big tech, big pharma, big banks, and big law have fought tirelessly to ensure that inventors cannot succeed.

A key to controlling the patent system has been these corporate interests ability to pick the Director of the USPTO. The Director effectively determines who gets to keep their patents and who doesn’t. Through staffing, culture, and procedures the Directors have set up the PTAB to revoke 84% of the patents they review, totaling over 4,000 to date. The vast majority of these patents are challenged by large corporations or their surrogates.

The rumored nominee for USPTO Director is John A. Squires. Squires is cut from the same cloth, a lawyer who worked for Goldman Sachs and Perkins Coie. Squires has advocated for many of the harmful changes. He submitted amicus briefs for the banks supporting elimination of injunctive relief in eBay, and raising the bar for willfulness in Seagate. He testified in Congress in support of creating the PTAB to take back patents from inventors, requiring inventors to file suit in the infringers’ districts, and reducing damages.

His testimony on behalf of the financial industry is rife with complaints about being sued for infringement and recommendations to weaken the patent system. Unfortunately, most of his aspirations have been implemented in recent years. If Squires were to become Director, he would continue the weaponization of the USPTO against inventors to protect the large corporations whose interests he advanced throughout his career.

Such antagonism toward inventors must be reversed. It has utterly destroyed the integrity of the U.S. patent system, such that there is virtually no chance for an inventor to bring a disruptive technology to market without it being stolen. As a result, investment in new products and technology is languishing, monopolies are metastasizing, and China is overtaking the U.S. in dozens of critical industries.

I hope that President Trump and Secretary Lutnick and the U.S. Senate will come to recognize the catastrophe and decline to put another anti-patent lawyer in charge of the USPTO.