Opinions and Editorials

Jun. 25, 2021

Townhall: Time to Strengthen Our Patent System by James Edwards

“It felt sometimes like the PTAB was making it up as they went along,” said Gene Quinn, founder and CEO of IPWatchdog, in an interview with former U.S. Patent and Trademark Office Director Andrei Iancu regarding the Patent Trial and Appeal Board.

Mr. Quinn politely understated the distressed situation to which the U.S. patent system has fallen over the past couple of decades.

Congress created the Patent Trial and Appeal Board (PTAB), an administrative quasijudicial panel of questionable constitutionality, in the destructive 2011 America Invents Act.  Then an ex-Google PTO director set up PTAB in such a tilted manner that it extirpates 84 percent of patent claims brought before it.

PTAB ignores the statutory presumption of patent validity.  Whereas federal courts apply a “clear and convincing” standard to prove invalidity, PTAB uses a lower “preponderance” standard.

PTAB is so unbridled a former chief judge of the Federal Circuit dubbed it patent “death squads.”  It’s more of a tool for patent infringers’ lawfare than for legitimate reconsideration of an issued patent’s validity.

Also, courts have made a mess of patent eligibility.  One judge calls it “validity goulash.”  The patentability law is intentionally broad because it’s only the threshold question.  But judges have created exceptions to what’s patentable, and PTAB and courts play along.