By Abby Rives, IP Counsel, Engine Advocacy & Foundation
You might not realize it, but whether you’re a startup founder, a digital entrepreneur, or a casual technology and Internet user — what the U.S. Patent and Trademark Office (USPTO) does impacts you and the agency needs to be listening to you. That’s why Engine filed comments this week on USPTO’s draft strategic plan, suggesting ways the agency could improve its plans to support all U.S. innovators, creators, and entrepreneurs.
USPTO’s draft strategic plan correctly recognizes that we all have a stake in the agency’s work. And in our comments, Engine pointed out how that critical theme should be echoed, often and explicitly, in every section of the strategic plan — each of the agency’s stakeholders should see her interests reflected in USPTO’s goals, objectives, strategies, and key performance indicators (KPIs). That includes innovators who have not (yet) applied for patents or registered trademarks, entrepreneurs who never intentionally interact with the patent system, small businesses who suffer in the face of wrongful infringement allegations, and the broader public.
Overall, USPTO’s draft strategic plan paints a promising picture of an agency invested in the success of every domestic innovator, creator, and entrepreneur, but its specific objectives, strategies, and KPIs need to be refined to better align with that goal. Engine enthusiastically agrees with the USPTO’s goal for “everyone with a novel idea to know they can bring it to reality, create a brand, start a company, and secure investment.” But as we point out in our comments, that demands a nuanced consideration of the intellectual property (IP) system, and USPTO’s strategic plan must account for the full reality innovators and entrepreneurs face.
Merely by way of example, the draft plan says USPTO wants to encourage veterans to participate in our innovation ecosystem. That should include people like Justus Decher, the founder and president of MyVitalz. In 2016, his telehealth startup received a demand letter from an entity that claimed to own the idea of telehealth generally. But that is not the sort of thing one person can own with a patent, and another court recommended that the patent be held ineligible. Thanks to its founder’s diligence and research, MyVitalz learned this and saved tens of thousands in settlement fees (or even more in legal fees). But USPTO would be wise to think about how it could have helped.
The draft plan also says USPTO wants to encourage innovation and entrepreneurship by retirees. That should include people like Jean Anne Booth, the CEO and founder of UnaliWear. She came out of retirement to create smart watches that extend independence with dignity for vulnerable populations. Reflecting on her experience with the patent system, she has explained:
I had to stop publicizing positive news about UnaliWear because every time I did, we would get hit with a demand or lawsuit from a patent troll. It does not matter that we do not violate their patents — they still threaten to sue. . . . There are good things that I and my company could be doing in the world besides dealing with patent trolls.
As the agency finalizes its strategic plan, it should build specific objectives and KPIs with those experiences in mind. And we offer several concrete suggestions for how USPTO can set out to support innovators like these — and many more. For example:
- Mechanisms to engage with all stakeholders. Right now, the agency has numerous channels to talk and listen to IP applicants, IP owners, and IP attorneys. And in recent years, USPTO leadership has demonstrated its willingness to engage with stakeholders across sectors, including listening to those beyond the “usual suspects.” But USPTO lacks formal mechanisms to communicate with most of its stakeholders. To be truly responsive, and to advance innovation to positive impact for everyone in the nation, the agency needs to be able to listen to more people in consistent and meaningful ways. We urge USPTO to build these new channels of communication, for example creating new advisory bodies or internal organizational units that interface with the broader public.
- Measuring USPTO’s success in supporting innovation. At a basic level, USPTO proposes counting the formal grant of IP rights to measure innovation. But Engine talks to founders and creators every day who are doing that exciting work without formally interacting with USPTO. For example, all kinds of great innovation are not patented and patents can go to foreign inventors or others who never make a product or offer a service in the country. And trying to increase patent counts could easily hurt domestic innovation — e.g., favoring the issuance of low-quality patents merely to up the numbers. Measuring innovation by counting IP filings also improperly discounts and ignores most of the work that goes into successfully launching a new technology or a new company. Even though USPTO is, understandably, focused on patents and trademarks, it should build its strategic plan in a way that recognizes and supports every step along the path of innovation and entrepreneurship. So we propose USPTO use other, better metrics to monitor how well it is supporting innovation and entrepreneurship.
- Collecting better data about misuse and abuse of IP. USPTO should deter bad practices and build plans to protect U.S. innovators and business from abuse under the auspices of the IP system. Digital entrepreneurs and Internet-enabled creators too often have their online products and services unfairly stripped from the market over bogus infringement allegations. Too many startups have received demand letters threatening patent litigation, where high legal costs are leveraged to coerce settlements in meritless cases. They have faced bad faith patent assertions, for example where the purported rightsholder fails to do basic diligence around infringement. They have received demand letters asserting expired patents. Part of fixing those problems means USPTO needs to collect data about how often the problems occur. From there, it can deter bad actors, help startups and small businesses defend themselves, and increase confidence in IP systems.
As USPTO embraces bringing innovation to impact, it must always remember that IP is a means to an end, not an end itself. And it should work to ensure IP rights truly foster the broader goals of innovation, creation, entrepreneurship, competition, and progress for all of us.
Engine is a non-profit technology policy, research, and advocacy organization that bridges the gap between policymakers and startups. Engine works with government and a community of thousands of high-technology, growth-oriented startups across the nation to support the development of technology entrepreneurship through economic research, policy analysis, and advocacy on local and national issues.
