USPTO Director Takes A Bold Step, But Is Bold Better?
Hot on the heels of the USPTO’s proposed new rules on IPRs (and PGRs) made public on October 16 (discussed here), Director Squires followed up with a letter on October 17, asserting more authority regarding the institution of IPRs and PGRs. The authority to determine whether or not to institute IPRs and PGRs is now to be solely and fully controlled personally by Director Squires (albeit “in consultation with at least three PRAB judges”). Furthermore, Director Squires will exercise that authority in most circumstances in a summary fashion, without providing any reasoning to support the decision to grant or deny of institution. As a reminder, according to statute the decision on whether to institute an IPR or PGR is “final and nonappealable,” 35 USC 314(d) and 324(d). Hence, Dennis Crouch at the Patently-O blog has characterized the new authority as “Unexplained and Unreviewable.”
In general, I’m opposed to authorities who issue final and noreviewable legal ruling in cases, without providing any reasoning in support of their decisions. But I did want to address comments (presumably) praising Director Squire’s recent actions as “bold.” A Patently-O commentor noted, “This is BOLD action being taken by Director Squires.” A commentor on LinkedIn enthused, “Another BOLD move by Director John A. Squires!” And regarding the recent decision in Desjardins (discussed here) a piece praised Director Squires as “making a bold statement as to the importance of AI-related technologies.”
We are all constantly urged to act boldly, as opposed to being timid. “Fortune favors the bold” can be traced back to Virgil (and even earlier). But there is a darker side to boldness, one explored by Francis Bacon in his essay, “Of Boldness.”
Bacon saw in human nature “more of the fool than the wise,” and he thought that therefore the foolish parts of people’s minds were those most potently swayed. He described boldness as “a child of ignorance and baseness,” and yet able to “fascinate and bind hand and foot those that are either shallow in judgment or weak in courage, … and prevaileth with wise men at weak times.” Boldness was “ever blind; for it seeth not dangers and inconveniences.” At this moment, when many thirst for bold leaders (and not just for the USPTO), it is useful to recall Bacon’s advice “that the right use of bold persons is, that they never command in chief, but be seconds, and under the direction of others.”