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Welcome to Skilled in the Art. I'm Scott Graham, and I aim to consider all stakeholder input while maintaining balance in my IP newsletter. Read on for my take on Andrei Iancu's Senate confirmation hearing.

As always you can share your thoughts and feedback with me at [email protected] and find me on Twitter at @scottkgraham.

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Andrei Iancu: The Change Patent Owners Have Been Waiting For?

Patent owners are not feeling the love from the Trump administration. After watching the solicitor general's office vigorously defend the Patent Trial and Appeal Board before the Supreme Court this week, Gene Quinn at IP Watchdog had this to say:

“The Department of Justice continues to take patent positions that are perfectly simpatico with Obama era policies. I suppose the lesson of the day is this: Not much has changed relative to patent policy under President Trump despite the great hopes of many in the patent owner community.”

Quinn's remarks were on my mind Wednesday during the first half of Irell & Manella partner Andrei Iancu's confirmation hearing for PTO director. Iancu's family came to the United States from Romania. He worked as an engineer at Hughes Aircraft before becoming a lawyer and taking a leadership role at one of the country's most prestigious law firms. He stressed the benefits of balance in the IP system, while promising to work with Congress and “members of the stakeholder community and assess how the system is going and what improvements can be made.”

That had a familiar ring. Three years ago, Michelle Lee introduced herself to the same committee as a daughter of immigrants who grew up in Silicon Valley. She worked as a computer programmer at HP before becoming a lawyer and taking a leadership role at one of the country's most prestigious tech companies. She promised to work with “all of the stakeholders and all members of Congress to strike that balanced, meaningful [patent] reform.”

There were some obvious differences. The Lee hearing was more of an event. Eight senators had questioned her over an hour and 20 minutes. On Wednesday, only Chairman Chuck Grassley and Sen. Chris Coons stuck around for Iancu's 30-minute hearing — understandable, given that it followed 2 1/2 hours of warfare over blue slip policy and circuit court nominees.

More subtle differences emerged as Iancu's hearing proceeded. On the matter of patent eligibility, Iancu acknowledged that the Supreme Court's controversial Section 101 decisions are the law of the land. But he said he would make it “one of my priorities” to see what additional guidance the office can give its patent examiners.

Asked by Grassley about abuses by “patent trolls,” Iancu said no abuse should be tolerated. But he noted that Congress and the courts have taken measures to address the problem that are still playing out. “We really do have to be careful, as they say, not to throw out the baby with the bathwater,” he said.

Finally, Coons ran through his criticisms of the PTAB's post-grant proceedings, including “high rates of both institution and invalidation.”

At first Iancu seemed to brush off the concerns. “I am very much aware of, shall we say, strident criticism of some of the proceedings,” Iancu told him.

“Strident and well-founded, or strident and baseless?” asked Coons, who's co-sponsoring legislation to rein in post-grant review.

“In some instances well-founded,” Iancu allowed, but “we all know what they say about statistics, we have to be careful with them.”

But under further questioning from Grassley, Iancu volunteered three areas worth reconsidering: the claim amendment process, the claim construction standard, and the evidence patent owners can introduceahead of decisions to institute proceedings.

Now that might be something to get patent owners' hearts fluttering.

Iancu came across as a personable individual from a brainiac family. His wife is a critical care pulmonary physician, his son is studying computer science, his daughter is in medical school, and his daughter's significant other is a data analytics consultant to the Washington Nationals.

The nominee was introduced to the panel by Pennsylvania Rep. Mike Kelly, who is acquainted with the Iancus through a relative who worked at Irell. “This is the guy,” Kelly said, “at a time when we so desperately need people like him.”

Drinker Biddle partner Bob Stoll, a former commissioner of patents at the PTO, said he hopes Iancu is confirmed quickly. “We need a confirmed director at the PTO table when the Trump administration is discussing IP policy,” he said.

Way Mo Ugliness

Just when I think it couldn't get any uglier, there goes Waymo v. Uber again. My ALM colleagues Ross Todd, Ben Hancock and Caroline Spiezio had the blow-by-blow this week: The U.S. attorney's office notified Judge William Alsup about a former Uber manager's claim that the company took steps to cover up trade secret theft. Alsup grilled the manager about the claims, then lit into deputy GC Angela Padilla over the company's failure to disclose them. He told Padilla that “maybe you're in trouble” and said he can't trust Uber's lawyers because “they've lied so many times.” And just as a refresher, Alsup, Padilla and Uber's primary outside counsel all practiced with the same firm throughout the 1990s.

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Velcro Sticks It to a Competitor

Earlier this year, lawyers at Velcro Companies proved they could make trademark law funny and viral. Now they've proven they can take a patent case to trial and win. In Georgia, no less. Fish & Richardson snagged the defense verdict for Velcro on Nov. 17 in a suit brought by YKK Corp., its primary rival in the automotive segment of the hook-and-loop fastener business. It's the first patent jury verdict in Georgia since 2008, according to Fish & Richardson. Partner Christopher Green led the trial team. My Law.com colleague Katheryn Tucker has the details.

Whoops

I made an error breaking down Monday's Oil States arguments in my previous briefing. I wrote that Deputy Solicitor General Malcolm Stewart told the court the PTAB has stacked panels with additional judges only once or twice, then later in the argument said it was three times. It wasn't Stewart, but respondent's counsel Christopher Kise, who pegged the number at one or two.

Chump Change for Finjan

I noted in a previous briefing that Finjan Inc. and Blue Coat Systems were squaring off for a second patent trial before U.S. District Judge Beth Labson Freeman in San Jose.

At the first trial, in 2015, Finjan had scored a $39.5 million verdict (which Blue Coat is appealing). The second jury was not nearly as generous, awarding $490,000 on two asserted claims Nov. 20. Jurors found three other claims not infringed, and couldn't reach a verdict on two. Freeman has scheduled a retrial on those two in January.

Morrison & Foerster and Quinn Emanuel Urquhart & Sullivan defended Blue Coat while Finjan was represented by Kramer Levin Naftalis & Frankel.

I'll close by mentioning that we have a Federal Circuit calendar next week. And not just any Federal Circuit calendar—it's an Oracle v. Google Federal Circuit calendar. See you on Tuesday with a preview.

Send me your predictions at [email protected].