Eleven years ago, DC extruded the exceedingly awful America Invents Act. Which took the most successful Intellectual Property (IP) system in the history of humanity – and fundamentally transformed it into an America-Last strip-mine of domestic IP creation.
“‘The index scores countries using seven criteria, including research and development spending and concentration of high-tech public companies.’”
“The America Invents Act (AIA) was the single worst disaster in the 226 year history of the U.S. patent system. The AIA did very real damage – enough to put many inventors out of business and discourage many others.”
Amongst the worst of it?:
“The real damage was hidden in the AIA’s creation of the Patent Trial and Appeals Board (PTAB) and three new procedures to invalidate issued patents – Inter Partes Review (IPR), Post Grant Review (PGR) and Covered Business Method Review (CBM).”
PTAB was allegedly created to be a cheaper-alternative patent-challenge forum to more expensive patent-challenge court litigation. Instead, it has become an additional patent-challenge forum – alongside court litigation. The same patent challenges are nigh always simultaneously filed in both – increasing the time and money wastes of patent challenges.
And because it is easier to file with the PTAB – MANY more challenges are now filed. There is, in fact, virtually no limit at all to the number of PTAB challenges each individual challenger can file. This is frivolous litigation – pumped up to infinity:
“The statutes for IPR, PGR and CBM do not provide many limits on filing of petitions.
“Numerous patents have been challenged by more than one petition, sometimes filed by the same petitioner.
“The USPTO has provided examples where multiple petitions can be filed. Fed. Reg. 77, 48612 at 48635 (Sep. 2012).”
And the challenges aren’t filed by Little Guy Inventors – in whose name AIA was allegedly written and passed.
“The first was the assumption that a PTAB proceeding would be the exception rather than the rule in a patent enforcement and would only be invoked in the case of a weak or ‘bad’ patent. What happened was the exact opposite.
“In most court suits, PTAB challenges are made by the accused infringer, especially in the cases where the patent infringement involves significant financial risk.”
The PTAB has ended up being exactly the opposite of what it was allegedly intended to be. Most PTAB challenges aren’t filed by Little Guy Inventors in defense of their patents. They’re filed by some of the hugest IP thieves on the planet.
Now, instead of paying for patents, Huge IP Thieves steal them – and then file multitudinous PTAB challenges against them. Because PTAB challenges are cheaper than lawsuits (though they file those too) – and paying for the patents:
“Years ago, Big Tech changed its business strategy. Previously, these tech companies would buy or license patent rights to new technologies – paying for the use of other people’s inventions. But now, Big Tech steals these inventions.
“This blatantly violates intellectual property laws. But Big Tech has gobs of money to deal with the consequences. Companies like Apple and Google have hundreds of billions in cash reserves – orders of magnitude more than small businesses earn in total yearly revenues.
“So, Big Tech engages in ‘predatory infringement’ because it’s cheaper to steal than to respect the law.”
And yes: Big Tech is the far-and-away hugest PTAB abuser.
“Company Petitions Filed
You’ll note massive IP-thief Amazon is only 19th on the list (with 104 petitions). That’s only because they are so obscenely huge – and their third-party-seller victims so exceedingly small – Amazon uses their market heft to bully IP creators into mass submission. And have built their mass IP theft into their global retail business model. So comparatively few PTAB abuses are necessary.
And, of course, these PTAB rulings are often exceedingly awful – and exceedingly pro-Big Tech. Because this is DC….
“Only 4 percent of all PTAB petitions for review proceedings end with a final written decision in which all claims are upheld as patentable.”
“‘If you like to steal other inventors’ stuff, then you must love PTAB,’ said Paul Morinville, managing director of U.S. Inventor Inc., an organization advocating for stronger patent protections for startups….
“One judge, for example, represented Apple Inc. in private practice and then ruled in favor of the tech giant 17 times after joining the court.
“Another judge represented AT&T Inc. as a private lawyer and later presided over a case involving the telecommunications company.”
That certainly seems fair.
Oh: Amongst the other Huge IP Thieves filing PTAB challenges? Communist China….
“China’s comprehensive innovation plan includes exploiting our own faulty and inadequate laws and institutions for their gains and our losses. Chinese companies are now leveraging the U.S. Patent and Trademark Office (USPTO) to their advantage, invalidating hundreds of patents – worth billions of dollars – at the Patent Trial and Appeal Board (PTAB).
“This is accomplished through the use of the Inter Partes Review (IPR), an attempt to invalidate (revoke) previously approved patents.”
You read that correctly. The AIA opened up our patent system – to international invasion and destruction. How exceedingly stupid is that?
Oh: And the PTAB is totally and completely unconstitutional.
“The Court ruled these Executive Branch judges are illegal – because they are in the Executive Branch. But then posited as a ‘solution’ – having another member of the Executive Branch review their rulings.
“The Court’s ‘solution’ adds another layer of unconstitutional bureaucracy. It does not provide a remedy for the unconstitutionality the Court its own self identified.
“So…we ALMOST got some sanity from the Supremes.”
Almost. Which is a whole lot more than we’ve been getting from the rest of DC.