The PTAB Reform Act Will Weaken the U.S. Innovation Ecosystem

June 21, 2022

A new patent bill called The PTAB Reform Act has been proposed in the Senate to replace the previously introduced Restoring the America Invents Act, which we have written about previously. This new bill has some of the same problems.

Patents holders have been under threat since the Patent Trial and Appeal Board (PTAB) was first introduced eleven years ago. The PTAB has led to gamesmanship and the invalidation of patents at an alarmingly high rate. USPTO data show that nearly two-thirds of PTAB decisions find in favor of the patent challenger, with over 80% of instituted IPRs that reach a final written decision resulting in the cancellation of at least one challenged claim, and over 60% of instituted IPRs that reach a final written decision resulting in the cancellation of every challenged claim. These high invalidation rates led one former judge on the Federal Circuit to call the PTAB a “patent death squad” responsible for “killing patent rights.”

Infringers have used the PTAB to harass and intimidate small companies and avoid paying rightful licensing fees to patent holders. In fact, the top users of the PTAB are Big Tech companies, who have filed hundreds of petitions seeking to invalidate the patents of smaller innovators:

PTAB Petitions Filed, 2012-2021

  1. Samsung: 771
  2. Apple: 765
  3. Google: 414
  4. LG: 268
  5. Microsoft: 267
  6. Intel: 257
  7. Unified Patents: 247
  8. Cisco: 179
  9. Comcast: 174
  10. Facebook: 149

The PTAB Reform Act would serve only to further tilt the playing field in favor of these Big Tech infringers. For example, it eliminates the “Fintiv doctrine,” which allows the PTAB to apply discretion to deny institution of a petition in order to prevent abuse. It permits challengers to file an unlimited number of petitions against a single patent. It also creates a legally questionable backdoor to give standing to parties who would not otherwise have it. These changes will hurt inventors and move the patent system in the wrong direction.

We urge Congress not to pass the PTAB Reform Act, but rather support the STRONGER Patents Act which would:

  1. empower U.S. inventors to protect their patent rights against infringers by implementing a commonsense framework for granting injunctions, and
  2. overhaul the PTAB to ensure its proceedings are conducted in a fair and consistent manner in line with federal courts.

Contact your elected representatives and tell them to oppose the PTAB Reform Act and support the STRONGER Patents Act now!