As Inventors Await Trump’s Patent Office Pick, Rohrabacher Voices Interest

WASHINGTON—While the U.S. Patent and Trademark Office is not a high-profile federal agency, some people are paying close attention to who President-elect Donald Trump chooses to lead it.

“Any Big Tech ally would be a huge problem,” inventor Randy Landreneau told The Epoch Times.

Landreneau’s group, the nonprofit U.S. Inventor, represents small inventors dissatisfied with how recent legislation and court decisions have affected their patents.

After the America Invents Act (AIA) was passed in 2011, people who would have previously gone to court when their patents were challenged were directed to instead appear before an administrative body, the Patent Trial and Appeal Board (PTAB).

A 2018 Supreme Court decision on the law defines patents as “public franchises,” meaning that granting them “is a matter involving public rights.”

Landreneau and other small inventors believe their patent rights are private rights. They oppose the new administrative system, arguing that it works to the advantage of bigger players and runs contrary to their rights as protected by the Constitution.

Their choice for patent office director is former Rep. Dana Rohrabacher (R-Calif.), who opposes the AIA. In 2018, the Republican lawmaker introduced the Inventor Protection Act, a bill aimed at rolling out some reforms to the patent system.

Rohrabacher told The Epoch Times on Jan. 20 that he is interested in the position and that those tied to the administration have been in contact with him about it.

“There’s nothing better that I could do than to protect our creative people from theft,” he said, adding that he believes patents are, first and foremost, private rights.

Those in support of the status quo would disagree. They say patents are public rights granted by the government, making them less easily challenged, or defended, through the courts. They say the current system protects innovative companies from lawsuits by “patent trolls,” or companies that hoard patents just to impose costs on competitors.

Charles Duan, a law professor at American University, told The Epoch Times that the fruits of the AIA are “a net positive.”

The patent troll threat “was well-documented and common before the AIA went into effect, so if concerns about them now are ‘overblown,’ that seems to just prove that the PTAB has served its purpose of discouraging abuse of low-quality patents,” Duan wrote in an email.

Duan wrote a brief in favor of the defendants in the 2018 case Oil States Energy Services LLC v. Greene’s Energy Group LLC. He did so on behalf of a tech-aligned think tank called Public Knowledge.

Landreneau said hindsight bias plagues the PTAB; he believes its judges too often dismiss new inventions as obvious. His organization has reported that the PTAB partly or completely invalidates 84 percent of the patents that it fully reviews.

“If your interest is in invalidating patents, you like the PTAB. If your interest is in not having your patent invalidated, you don’t like the PTAB,” Landreneau said.

Duan said the PTAB’s purpose “is to ensure that patents are granted only on significant, non-trivial advances in knowledge.” That boosts innovation, he said, citing his own research on the pharmaceutical industry—another sector that has taken issue with today’s system.

Inventor Molly Metz, a PTAB foe whose husband is the chief operating officer of U.S. Inventor, described the talk of patent trolls as “a false narrative.”

Today, she said, anyone who has a patent but does not develop it—a “non-practicing entity,” in legal jargon—risks being cast as a patent troll.

Metz’s own experience navigating the current system did not leave a good impression on her. She lost a costly and complex legal battle with Rogue Fitness over a jump-roping contraption that was the basis for her business. She alleged that they infringed on her intellectual property, which cost tens of thousands to patent in the first place.

The Epoch Times has reached out to Rogue Fitness for comment.

After losing in the PTAB, she worked her way up the court system. In 2023, the Supreme Court denied her petition.

“I’ll never get my patents back,” she said.

Her business has suffered, too, she said. The employee headcount has dwindled from 45 to 1.

Like Landreneau, Metz opposes any nominee for patent office director with Big Tech ties.

Likely Names

Aside from Rohrabacher, another potential candidate for patent office director is Vishal Amin.

Amin helped develop the AIA while he was a lawyer on the House Judiciary Committee. During the first Trump administration, he served as intellectual property czar. He now works for Intel.

While Landreneau and other small inventors worry that Amin would favor tech interests, Amin has advocates, too.

Knowledge Ecology International, a not-for-profit focused on knowledge resource management with a view to social justice, also contributed a brief to the Oil States case in favor of the defendants.

“We think it is abundantly clear that patents are public rights,” the brief states.

In an email to The Epoch Times, the organization’s director, James Love, sounded concerned about the idea of 77-year-old Rohrabacher leading the patent office, in part because of his age.

“I’d be surprised [if] he is selected for managing such a huge and complex bureaucracy,” Love said. Amin, he said, “seems a less surprising pick.”

“At least he knows how the government operates,” Love added.

Duan, the American University professor, said he had collaborated with Amin and “always found him to be thoughtful and balanced in his approaches to patent law.”

A Changing Patent System

The small inventors say the framers of the Constitution clearly cared about the intellectual property rights of the individual.

Rohrabacher said that those rights went unquestioned “until the international wheeler-dealers decided there were other ways to approach prosperity and distribution of wealth.”

Article 1 of the Constitution guarantees inventors the right to their discoveries—the only time the word “right” appears in the document, which was signed four years before the ratification of the Bill of Rights.

And in Federalist Number 43, James Madison, the father of the Constitution, wrote that the usefulness of that right “will scarcely be questioned.”

“The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals,” Madison wrote.

In 1790, Congress passed the Patent Act, which further strengthened inventors’ time-limited rights “to promote the progress of useful arts.”

Yet supporters of the current system say today’s environment requires new checks and balances to promote that sort of progress.

Absent the PTAB, Duan said, “it becomes easy to obtain patents on obvious ideas that everyone knows and uses; patents that don’t encourage big firms to make real investments in innovation, and patents that end up getting in the way of small inventors trying to innovate.”

Love said: “Nowadays, you need so many patents on products [that] the narrative of one patent, one product is absurd and not helpful in dealing with policy challenges.

“Firms that make and market real products need to operate in an environment where they can clear rights to limit third-party royalties to reasonable amounts.”

Landreneau said the multi-patent model “is how big corporations operate,” making it harder for the common inventor.

“When our system was fair, one patent was ample to protect a fairly simple product, assuming the patent was written well enough,” he said.

Dirk Tomsin, Metz’s husband, said the current system has survived because “no one really knows about patents.”

The lobbyist for small inventors said that he sometimes gets a little worked up when talking to Washington decision-makers about what he sees as injustices for patent holders. For him, it’s personal.

“I’m not a hired gun,” he said.

The Epoch Times has reached out to Amin and the PTAB for comment.