Richard Lloyd

When this blog first reported that Andrei Iancu was a candidate for USPTO director in April it was hard to find anyone in the patent community, at least in DC, who knew him well enough to provide informed comment on what his leadership might mean.

He doesn’t have the high-profile industry background of some recent directors such as David Kappos or Michelle Lee, and has not been politically active like other recent post-holders Bruce Lehman, Todd Dickinson, James Rogan or Jon Dudas. What’s more, Iancu eschewed publicly campaigning for the position and has eschewed all public opportunities to outline where he stands on various key topics.

Almost four months on and following the White House’s announcement of its intention to nominate him for IP’s top job in the US, Iancu remains a largely unknown quantity. As a result commentators have been forced to parse his record as a patent litigator and managing partner of Irell & Manella for signs of which way he might lean on the hot button issues. Those that do know him refer to someone who is “smart and dignified”. “I suspect he interviewed very well,” commented former director Dickinson, now a partner at Polsinelli. 

Iancu’s relative anonymity was reflected in the string of announcements reacting to his nomination put out by the main IP advocacy groups and industry bodies. The statements from the likes of the Biotechnology Industry Organization (BIO), AIPLA, IPO, the Coalition for 21st Century Patent Reform, United for Patent Reform and the Innovation Alliance suggested that they knew little on where he might stand on, for example, the inter partes review (IPR) process.

And that might be Iancu’s greatest strength. He is, as Hans Sauer, deputy general counsel of IP at BIO, put it, “nobody’s pick” and so is not seen to be beholden to any particular sector. That’s in contrast to, say, Lee, whose time at Google meant she was never going to be welcomed by large parts of the stakeholder community.

The fact that Iancu acted for TiVo while at Irell in a series of high profile, multi-million dollar infringement suits against the likes of Cisco, Microsoft and Verizon has encouraged some that he has at least seen the workings of a successful patent licensing function up close. But then, on the flip side, there’s his representation of Ariosa in Sequenom v Ariosa Diagnostics, a case on which the Supreme Court declined to grant cert and which has become a poster child for the biotech community on all that is wrong with the law around patent eligible subject matter.

His work for Ariosa has led some to suggest that the biotech community may not be happy with the nomination. Asked if he had any concerns that, from BIO’s point of view, Iancu was on the wrong side of Sequenom, Sauer gave a fairly neutral response. “It’s hard to tell,” he said. “It has been said that “well he was the litigator and he did a successful job for his client, it doesn’t really say much about his own personal views” and that maybe true.”  At the very least, Iancu’s views on the state of the law around patent eligible subject matter should make for one of the more interesting portions of his nomination hearing. 

For big tech, while Iancu can hardly be made out to be Silicon Valley’s man in the way that observers always questioned where Lee’s loyalties lay, he was clearly one of the far more palatable candidates for the job. The anti-IPR comments from Phil Johnson and former Fed Circuit Chief Judge Randall Rader, always meant that tech was going to do its utmost to veto either of their candidacies.

With no one, as yet, voicing opposition to the nomination the question is one of when not if he takes over as director. Thus, all eyes are on the Senate Judiciary Committee and a busy slate of nominations and legislative priorities (not least a funding bill to avert a government shutdown) which might delay Iancu’s appointment. One well-connected lobbyist predicted that a hearing would happen in either October or November, with confirmation finalised in December.

According to Dickinson some positive comments on the nomination from Senator Coons, a Democrat who sits on the committee and is a prime mover behind the STRONGER Patents Act, are an encouraging sign that the process will be smooth. “I would think there’s no reason for Democrats to hold him up,” Dickinson said.