During a Senate Judiciary Committee executive business meeting on November 14th, cosponsors of two controversial bills – the Patent Eligibility Restoration Act (PERA) and the Promoting and Respecting Economically Vital American Innovation Leadership (PREVAIL) Act – delayed the legislation yet again, citing skepticism from other members of the committee. In his remarks about the PREVAIL Act, Senator Chris Coons alleged “significant misrepresentation … about what happens at PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA..” Historically, however, it has been the PREVAIL Act’s advocates who frequently misrepresent key data points about the PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. to advance their agenda.
Proponents of the PREVAIL Act often call the PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. a “death squad” for property rights—borrowing a phrase first used by a Federal CircuitSee CAFC judge (who stepped down over an ethics violation) more than a decade ago—when they argue that PREVAIL is needed to ensure the PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. protects small inventors and innovators. PREVAIL’s supporters cherry-pick figures in an attempt to paint a picture of excessive PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. patent invalidations.
But a holistic look at the data reveals a different story. In the Board’s entire history, only 10% of challenged patents have been fully invalidated. In FY23, just 30% of challenged patent claims and 51% of instituted claims were found unpatentable. PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. critics often, conveniently, omit that in recent years the PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. declined to hear between 33% and 44% of all petitions presented to them. Invalidation rate metrics that limit data to instituted petitions are distortedly high because those cases have already surpassed a key legal and evidentiary threshold. What’s more, when appealed to the Federal CircuitSee CAFC, PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. patent validity determinations are affirmed at a higher rate and reversed at a lower rate than district court decisions. In fact, the Federal CircuitSee CAFC is three times as likely to reverse a district court’s determination of invalidity as a PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. determination. This is hardly evidence of a biased “death squad.”
Senator Coons also insinuated that the PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. favors “Big Tech” companies over smaller entities. This is again not the case. High-tech companies face more patent litigation than all other industries combined. And non-practicing entities (NPEsNon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it.) bring 87% of district court litigation against high-tech companies, often asserting weak and invalid patents. Given this, it’s unsurprising that high-tech companies are frequent users of the PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA.. The PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. does not pick favorites based on a company’s size or industry. Rather, when one set of companies is disproportionately targeted with meritless lawsuits, it is only natural that those same companies also avail themselves of the PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA..
Data surrounding the PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. has certainly been misrepresented, but not in the way that the PREVAIL Act’s advocates suggest. The decision to delay these bills is a positive step, but Congress should go further and discard them altogether.
What’s more, policymakers and advocates who oppose the PTAB—including Senator Coons—need to stop misrepresenting what the data tells us about PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. operations. The dedicated and impartial Administrative Patent Judges who spend their days reaching the correct results in these proceedings deserve better.
