September 6th, 2017
On Tuesday, June 6, 2017, Michelle K. Lee submitted her resignation to step down as the Director of the United States Patent and Trademark Office after a brief two year stint. After two months of speculation on who would serve as the interim Director, the Trump administration has finally nominated several candidates, including Andrei Iancu, the Managing Partner at Irell & Manella, LLP.
According to the firm’s website and personnel profile page, Iancu primarily focused on patent litigation, most notably representing TiVo against telecommunication giants such as Motorola, Verizon, and Cisco. Iancu also teaches patent law at UCLA School of Law and has published multiple articles and journals throughout his career and has received recognition and praise from Chambers USA, Legal 500 US, and The Best Lawyers in America for his achievements. What makes Iancu stand out from this group of nominees, however, is his apparent support for patent rights and software patents and criticism of current PTAB procedures, particularly during inter partes review. Many believe that Iancu’s stance on these matters will lead to favorable outcomes for patent holders by strengthening patent rights, which many believe have been weakened during Lee’s tenure.
Software patents are currently reviewed under the same view as business method patents in that they are generally considered non-patentable subject matter given that software comprises mostly algorithms upon algorithms and some thought processes. In light of this, many software patents have been struck down. Iancu acknowledges these problems, but also believes that restriction of software patents is undesirable and suggests that it is up to “Congress to rescue the patentability of computer programs” because computer programs and software are “the emblematic technology of our Information Age”. Iancu further states that software patents should not be reviewed under the same scope as business method patents for these very reasons.
We live in a post-Alice world where courts are strictly critical of software patents and patent trolls run amuck. Indeed, only a few recent cases have survived since the aftermath of Alice, such as DDR Holdings. But perhaps there is new hope in light of this new nomination. Of course, Iancu himself is not a savior of all things software patents, but he may be able to steer the USPTO ship in a direction that is most favorable to present and potential patent holders in the computer software industry.
Author: John Ahn, Patent Attorney
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