It is no surprise that voters in both parties are not fans of the views of Senator Ted Cruz (R-TX). Despite this his recent commentary to a group within the Senate Judiciary Committee deserves a fair listen. It’s about the failure of the Patent Trial and Appeal Board (PTAB) to support U.S. innovation.
Cruz’s remarks about creating a conducive environment for invention in America make sense. They should should not be dismissed or politicized, especially in view of the PTAB’s potential impact on U.S. businesses, jobs and competition.
On Wednesday, June 22nd, 2022, The Senate Committee on the Judiciary’s Subcommittee on Intellectual Property met to hear testimony regarding changes to the PTAB, a forum originally established to improve patent quality and resolve disputes. The PTAB Reform Act of 2022 was introduced previously by Senator Patrick Leahy (D-VT), Senator John Cornyn (R-TX), and Senator Thom Tillis (R-NC). Some believe that without the precise language, the bill would significantly deter innovation in the United States and be a detriment to many businesses.
The Judiciary Committee is headed by Senators Durbin (D) and Grassley (R). Senator Cruz is suspicious of of the leverage afforded Bigtech through the PTAB and is imploring a “thorough markup” of the proposed legislation with an eye on how it will impact small and medium sized businesses and inventors.
84% of Patents Reviewed are Invalidated
The Patent Trial and Appeal Board (PTAB) was created in 2011 under the America Invents Act (AIA). This administrative court was established with the sole purpose of invalidating issued patents that should not have been issued. There are a lot of them, but there are also many invention rights that are unacknowledged because of the PTAB and the high price and protracted time-line of litigation. (It can take two to five years or longer for a patent case to wind its way through the courts and appeals.)
Many infringers have used the PTAB to their benefit. The PTAB is an efficient way to invalidate a startup or inventor’s patent that might prove costly to them if they were required to take a license. Whether or not an inventor attempts to stop a large corporation from infringing its patent, many companies use the PTAB to invalidate them. 84% of the patents that are reviewed by the PTAB are invalidated.
Whatever your party affiliation or view of Senator Cruz,
his remarks are worth hearing
Arguably, the weakest patents are reviewed, those should never have been issued, so a majority are easily invalidated. They are not worthy of the time and cost of litigation. However, many businesses believe the PTAB engages in overkill and serves the interests of bigger patent holders.
- PTAB invalidates 84% of all patents they review
- PTAB is an administrative court with no jury and minimal due process (if any)
- PTAB Trial typically has three Administrative Patent Judges- with little to no technical experience
- PTAB allows unlimited petition
- PTAB defense costs $400,000 to $800,000. It is extremely rare for an attorney to take a PTAB case on contingency
At the hearing Senator Cruz spoke in favor of startups and inventors. He discusses how Google and other companies endeavored to establish the PTAB at the USPTO to help them avoid paying for patents.
Whatever your party affiliation or view of Ted Cruz his testimony is worth hearing.
Go here to listen to Senator Cruz’s Remarks at the PTAB Reform Hearing, June 22, 2022
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