USPTO Contender John Squires Backed 'Patent Reform' Before Recently Publicly Embracing Howard Lutnick's Vision
A look at how Squires championed efforts that led to the creation of the PTAB—and his public embrace of Howard Lutnick's vision for patents in recent months. Also, his pro-patent eligibility views.
Last week, intrepid Law360 reporter Dani Kass broke the news that attorney John Squires is expected to be nominated as the next USPTO Director. Bloomberg reporter Michael Shapiro followed up that Squires was interviewed for the job along with 3 other people, including “Brad Watts (formerly Sen. Tillis' IP point person, now at the US Chamber), Vishal Amin (former White House IP Czar in first Trump admin., now at Intel), . . . and a mystery fourth person.”
I first saw Squires floated as the possible next director in November, followed by a strong endorsement on LinkedIn from his patent litigation client Doug Pittman (“PTAB, IPRs, 101, Injunctive relief and much more is stifling creativity . . . John will clean up this mess and issues”). Pittman, an inventor and entrepreneur, has continued to champion Squires for the USPTO Director role since then.
After the news broke, I learned that Squires was now making the rounds in DC, emphasizing his own personal ties to Commerce Secretary Howard Lutnick and conveying the sense that he is all but certain to be chosen for the role. Pittman told me that Squires and Howard “worked together and are great friends.” But as even Pittman publicly noted, it’s not a done deal.
Squires’ Patent Reform Advocacy
Squires was last back in the patent spotlight when he testified in 2007 at a Senate Judiciary Committee hearing in support of the Patent Reform Act. The Patent Reform Act eventually morphed into the Leahy-Smith America Invents Act (AIA), which was finally signed into law in 2011 and created new post-grant proceedings for invalidating patents at the Patent Trial and Appeal Board (PTAB).
Prior to the testimony, Senator Patrick Leahy gushed over Squires: “Mr. Squires, in my 32 years here, you are the first lawyer who has testified who also played as a linebacker for a Division II team. That could be interesting in close negotiations.”
At the hearing, Squires generally noted that “[p]atent examination quality issues, predatory patent assertions, and litigation abuse have precluded continued progress and efficiencies in bettering the U.S. financial system.”
With regards to post-grant review, Squires argued that “[f]or industries with complex value chains such as ours, especially in the services area, a second window may be the only opportunity to challenge validity and get prior art in front of the agency expert at deciding it. Those arguments won out and led to the creation of the PTAB.
He also questioned whether “presumption of validity” for patents is warranted “in cases where there are developing industries or lack of prior art that gets applied in the Patent Office.” Instead, he suggested making a process “available to more people” to oppose issued patents based on prior art before presumption of validity is given in court. A strain of this view eventually led to presumption of validity not being given to patents in PTAB proceedings.
Squires also argued for “venue provisions as an effective means to forestall blatant forum shopping and litigation abuse.” Those provisions did not make it into the AIA, but the Supreme Court’s TC Heartland decision in 2017 significantly restricted patent owners’ ability to choose the venue.
In his written testimony for that hearing, Squires also noted his groups’ support for eliminating “the automatic injunction rule” in eBay and curbing imposition of treble damages when willfulness is found.
Squires did take a much more positive, balanced view of the patent system than other proponents of patent reform at the time. He noted in his written testimony that “patents in our [financial services] industry do provide substantial benefits and incentives for financial service firms,” and stated during the hearing that “there is just some fine-tuning that needs to happen.”
He did not mention patent eligibility in either the hearing or his written testimony, and his remarks came before Bilski and Alice put broad swaths of financial services patents in jeopardy - so he may have been framing his views to sound more measured at the time.
Support for Relatively Broad View of Patent Eligibility
In 2008, Squires - along with Professor John Duffy - was listed on an amicus brief in support of neither party in the Bilski case. The brief argued that “Congress has wisely and consistently adopted a broad definition of patentable subject matter that allows new and emerging disciplines and industries to benefit from the patent system.” The brief further argued for “a broad view of patentability circumscribed only by the three recognized, judicially created exceptions” for laws of nature, physical phenomena, and abstract ideas.
The brief provided a historical basis for granting business method patents and went on to delineate between what “business methods” should and should not be patentable:
Where business techniques become amenable to the rigorous methods of technology and science (including the science of mathematics), they are quite clearly patentable.
A good contrast is provided by considering methods akin to those described by Dale Carnegie. Even if they are supposedly good ways of succeeding in business, such “business methods” would not be patentable; they are too imprecise, indefinite, and abstract for the patent statute to be rationally applied. Where, however, sophisticated algorithms are applied to complex financial systems – like tracking would-be terrorists – such patents clearly fall within any definition of technological.
Linked Private Sector’s Reliance on Patent System to National Security
The brief was field on behalf of “Regulatory DataCorp, Inc.,” which was started in the wake of the September 11 attacks as “the private sector’s pro-active response” to “develop and implement a centralized platform which provides sophisticated data-aggregation services to combat global threats posed by money laundering, fraud, corruption, terrorist financing, organized crime, and other suspicious activities” by “identifying suspicious transactions that must be reported to the authorities.”
The brief notably started by quoting the above book review about how Alfred Loomis filed for patent applications to cover radar technology advances that helped win World War II. He then noted that “[e]ighteen months before this compelling account of how the patent system benefited the nation’s security in the days of Alfred Loomis and this clarion call for it to do so again today, Goldman, Sachs & Co. filed its first patent application on sophisticated computer technology designed to detect suspicious financial transactions, including terrorist-financing schemes.”
The brief “The U.S. patent system even has a role in improving national security by advancing examination of applications that contribute to countering terrorism.”
Recent Embrace of Howard Lutnick’s Vision
Although others have reported about Squires’ work for various clients, I was not able to find Squires publicly sharing anything regarding if, how, and/or why his views on patent issues have evolved since his Senate testimony in support of “patent reform.” Notably, unlike other contenders for the USPTO role, he did not publicly outline any vision for how this administration would or should approach IP policy.
That changed after Howard Lutnick was chosen as Commerce Secretary. Since that time, Squires started publicly posting on LinkedIn in support of Lutnick and his pro-patent vision. In his first post in the series, Squires noted “One of the biggest beneficiaries of Howard W. Lutnick's confirmation for Commerce may be the USPTO . . . Howard credits patents with saving Cantor Fitzgerald . . . time to refresh the patent conversation as a pro-competitive force.” In a subsequent post, Squires wrote that “with the breathtaking on-rush of emerging technologies, such as crypto and AI (and some 101 help due in bio/pharma), a patent savvy U.S. Department of Commerce Secretary supporting a strong USPTO is more important than ever” and linked to the Bilski brief from 2008 discussed above.
More recently, he addressed the USPTO’s record backlog: “the patent pendency crises needs immediate attention . . . If left unaddressed, no doubt the USPTO's global standing will suffer (let alone the applicants) and a great economic engine force will wither.” In another post, he noted USPTO “Director Andrei Iancu's vast accomplishments [during Trump’s] first term.”
Takeaway
The flurry of posts clearly suggests that Squires is ready and eager to serve as Lutnick’s USPTO Director and implement his vision for fixing America’s patent system. In all likelihood, almost anyone taking on that role would be able to make some improvements along those lines. While Squires appears ready to take the helm at the USPTO, his lack of prior experience within the agency and absence from recent public patent policy discussions before the election raise questions about whether he will be able to enact meaningful changes that survive beyond this administration.