by: Patrick Anderson | August 30, 2017
President Trump nominated Irell & Manella partner Andrei Iancu as the next director of the US Patent & Trademark Office. Given that the outgoing director, Michelle Lee, officially resigned back in June, leaving chaos in her wake—including numerous scandals surrounding the Patent Trial and Appeal Board—patent owners and inventors likely wonder how Iancu’s nomination affects their stature.
From one perspective, inventors probably find difficulty imagining a worse state of affairs at the USPTO. Michelle Lee joined under the Obama administration, coming from Google, a company famously built by leveraging its own intellectual property and subsequently trespassing over the property rights of others with reckless abandon. In hindsight, Lee’s lack of respect for inventors and inventor’s rights hardly came as a surprise. Under her watch, the PTO’s mission transformed from one that grants rights to one that actively seeks to strip them away.
Conversely, Iancu comes from a successful trial firm and knows, first hand, how patent law and policy affect patent owners in a very practical sense. He has petitioned the PTAB for cancellation of a competitor’s patent claims and won (e.g., IPR2014-01511). He has also defended patent owners in IPR petitions before the PTAB and lost (e.g., IPR2014-00727). Iancu likely posses a strong understanding of how fairly (or not) the PTAB treats patent owners. He also helped innovative companies enforce and license their patent portfolios to major industries, resulting in gross payments in excess of $1 Billion (with a “B”), including companies in the high tech and medical device sectors. It would be an understatement, for sure, to suggest that Iancu knows what patent owners face when dealing with widespread infringement.
Another important aspect to note is the firm, Irell & Manella, with which Iancu spent 18 of his 21 years as an attorney. Irell is well known in legal communities for its willingness to represent plaintiffs in commercial litigation. Indeed, a substantial portion of their business stems from contingent fee representation, demonstrating a strong willingness to share risk with their clients. Have Irell and Iancu spent time defending infringers as well? Of course. In many of those cases, they likely do end up paying patent owners for a license. This reflects the realities of a modern litigation practice, and should not be seen by patent owners as a bad sign.
In fact, Iancu’s practical experience on both sides of the ‘v’ makes him an ideal candidate to run a fair and balanced patent office. Thus, while we should always be cautious and observant when a new sheriff comes to town, there is significant reason for optimism in Iancu’s nomination.