Opinions and Editorials

Aug. 14, 2020

IAM: Why Probability Theory Shows That With Multiple Challenges All Patents Can Eventually Be Invalidated by Matteo Sabattini

Allowing a patent to be challenged an inexhaustible number of times has a subtle yet significant effect on the innovation ecosystem, argues Ericsson’s Matteo Sabattini

Patents exist to provide innovators with the ability to be compensated for the important technological contributions that they create in exchange for the disclosure of their inventions. This is a concept so important that the US’s founding fathers enshrined patents in the country’s Constitution. However, in recent years – and especially after the America Invents Act (AIA) was enacted in 2011 and the Patent Trial and Appeals Board (PTAB) created – it suddenly became much easier to challenge the validity of patents in multiple venues and at multiple times.

The goal of the PTAB, and in particular of inter partes reviews (IPRs), was to create a cheaper, alternative option to litigation. Some have argued that the PTAB helped to provide a check on patents that had been issued prior to the USPTO instituting an improved system of checks and balances on patent quality prior to issuance. However, in some cases, the PTAB has been used for a more nefarious intent and has simply become a burdensome overlay to any litigation, and sometimes used offensively even before any assertion or licensing demand has been brought by a patent owner.

While some argue that the PTAB is a useful, sometimes necessary tool to ensure patent quality, others have argued that the very high invalidity rates show a bias against patent owners in favour of those challenging their patents. One of the main problems at the heart of the IPR system is the possibility to challenge the same patent an endless number of times in light of newly found prior art.