by Dennis Crouch

In a prior post, I focused on President Elect Trump’s nomination of Howard Lutnick as Commerce Secretary, but the most direct impact for the patent system will be the upcoming nomination of the next USPTO Director. Dennis Crouch, Howard Lutnick and the Patent System, Patently-O (November 25, 2024).  Like the Secretary of Commerce, the Director (who is also Undersecretary of Commerce) must also be nominated by the President and confirmed by the Senate under 35 U.S.C. § 3.

Professor John Duffy (UVa) recently outlined four essential qualities for the next USPTO Director. [Part 1][Part 2].  Duffy was my law professor at UChicago back in 2002, and I have deeply respected his work since then – both as a scholar and teacher.  Back then we were at the apex of broad patent eligibility doctrine.  The landscape has shifted dramatically then, with decisions like Alice and Mayo fundamentally reshaping what inventions qualify for patent protection. Duffy and I align in thinking that eligibility scope has been unduly narrowed.  We also align on another axis – that the obviousness should be robustly examined at the USPTO as the central patentability doctrine. Recall here that Duffy was one of the key forces behind KSR v. Teleflex that eliminated the Federal Circuit’s more rigid “TSM” test.  As I get into this post, I also want to recognize the background that – despite these major changes to the patent system seemingly making it more difficult to obtain patent protection – the allowance rate is higher than anytime in the past 15 years. Dennis Crouch, USPTO Patent Grant Rate and Growing Backlog, Patently-O (Nov. 29, 2024).

Duffy’s Four Part Framework for USPTO Leadership: First, Duffy argues that the new Director “should be open to a more reasonable, expansive, and text-based approach to patentable subject matter.” As he notes, this is particularly important given the rapid advancement of information-based technologies in the 21st century. He rightly recognizes that the patent system must adapt to embrace new technological fields while maintaining its fundamental principles.

Second, the Director must possess familiarity with emerging technologies, particularly in areas like cryptocurrencies and artificial intelligence. As Duffy explains, the Director’s role as Under Secretary of Commerce for Intellectual Property demands leadership across all IP fields—a scope that continues to expand with technological advancement.

Third, and perhaps most pragmatically, Duffy emphasizes the need for bureaucratic reform. Managing over 10,000 patent examiners requires not just administrative skill but also the vision to “rethink the PTO from the ground up.” This is particularly relevant given the agency’s evolution into what Duffy describes as a “complex Rube Goldberg machine” of initial examinations and administrative reviews.

Fourth, Duffy insists on rigorous enforcement of the nonobviousness requirement, calling it “central to the proper functioning of the patent system.” This point deserves particular emphasis and expansion.