Federal Circuit Nominee Questioned on Patent Law
The National Law Journal
A U.S. Patent and Trademark Office lawyer nominated for the U.S. Court of Appeals for the Federal Circuit spent most of his confirmation hearing on Capitol Hill answering questions about his background in patent work.
Raymond Chen, the deputy general counsel for intellectual property law and solicitor for the PTO since 2008, answered questions on April 24 about patent trolls and his views on the U.S. Supreme Court's recent rulings in patent cases.
Senator Chuck Grassley (R-Iowa), the Senate Judiciary Committee's ranking member, asked Chen about comments he made that the Supreme Court has repeatedly rejected the Federal Circuit's efforts to draw a bright line rules in litigation on patent cases. Grassley asked Chen whether the Supreme Court has failed in clarifying patent law.
"I think what they have done is adjusted the standards… to ensure that there are more accurate results in applying patent law to certain fact patterns," Chen testified.
Grassley also pressed Chen on what role the Supreme Court should play in making patent law. "They should be, of course, construing the statute rather than engaging in policy making," Chen responded.
Senator Mazie Hirono (D-Hawaii) asked about what the PTO is doing to confront litigation abuses by so-called "patent trolls," formally known as non-practicing entities.
"It's hard for me to know what is the scale of the problem and how severe it is," Chen said. He added: "I think the patent office can do more, and they are doing more" under the America Invents Act.
Now there is an opportunity for people who are defendants to go back to the agency for administrative review, and the patent office is trying to improve the quality of examination, Chen said.
Grassley also asked Chen to keep whistleblowers in mind if he is confirmed, since "this court has an abysmal record of supporting whistleblowers." Chen said he had no experience with whistleblower cases.
If he's confirmed, Chen would be the first Asian American to serve on the Federal Circuit in more than 25 years. He has been at the PTO since 2000, and has represented the agency in numerous appeals and personally argued more than 20 cases before the Federal Circuit, according to the White House.
At the PTO, Chen also issued guidance to patent examiners, and advised the agency on legal and policy issues and regulations. He also has co-chaired the Patent and Trademark Office Committee of the Federal Circuit Bar Association and is a member of the Advisory Council for the United States Court of Appeals for the Federal Circuit, the White House said.
Todd Ruger can be contacted at email@example.com.