From the Alliance

Jun. 22, 2023

Innovation Alliance Statement on the PREVAIL Act of 2023

WASHINGTON, D.C. – Innovation Alliance Executive Director Brian Pomper today issued the following statement on the bipartisan Promoting and Respecting Economically Vital American Innovation Leadership Act (PREVAIL) Act of 2023, introduced in the Senate by Senators Chris Coons (D-DE), Thom Tillis (R-NC), Dick Durbin (D-IL) and Mazie Hirono (D-HI):

“The Innovation Alliance commends Senators Coons, Tillis, Durbin and Hirono for introducing the PREVAIL Act. This important legislation will restore much needed fairness to the USPTO’s Patent Trial and Appeal Board (PTAB) process and help protect American innovators from harassment by Big Tech and other companies who violate intellectual property rights.

“The quasi-judicial PTAB was intended to provide a quick and cost-effective alternative to district court litigation for resolving patent disputes. Instead, the PTAB process is being abused by Big Tech and others who use the administrative body to repeatedly attack the patents of smaller innovators so they can use others’ inventions without paying licensing fees. This is undermining patent rights, which provide a critical incentive for innovation in the United States.

“Despite claims that the PTAB process benefits small businesses, the most frequent users and beneficiaries of the PTAB system have been Big Tech companies, along with large Chinese tech companies such as ZTE and Huawei, who have filed hundreds of PTAB petitions to challenge the patents of smaller competitors. With armies of lawyers and nearly bottomless resources, these Big Tech companies have also used the PTAB to file multiple challenges against the same patents, forcing small inventors to drain their resources defending their innovations again and again.

“It is clear that the PTAB tilts the scales in favor of those seeking to invalidate patents. According to one analysis, 84% of patents challenged at the body were partially or wholly invalidated, compared to 30% of patents challenged in district court. These statistics led a former Federal Circuit Chief Judge to describe the Board as a ‘death squad killing property rights.’

“To restore fairness at the PTAB, the PREVAIL Act will limit the ability of infringers to launch repetitive and harassing challenges against inventors. And it will harmonize the standards between the PTAB and district courts so infringers can’t pick a path of least resistance for their patent challenges. This is smart legislation that will put a stop to this Big Tech abuse and protect American innovators. Congress should take up this bill and pass it now.”