The Next USPTO Director: Duffy’s Four Factor Test
Patent – Patently-O 2024-11-30
Summary:
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.