Our Founding Fathers had the foresight to include in the Constitution a clause granting inventors the"exclusive right" to their inventions. This clause, embodied in our patent system, has created a powerful incentive for risk-taking among American inventors and those who fund them.
Unfortunately, that incentive structure is being undermined by a little-known government body, the quasi-judicial Patent Trial and Appeal Board , within the U.S. Patent Office. The PTAB, which was created byas part of the 2011 America Invents Act, consists of a panel of unelected"judges"—read"bureaucrats"—who hear cases challenging the validity of patents in dispute.
Although the PTAB was intended to provide a low-cost alternative to district court litigation for resolving patent cases, it has instead become a tool for large companies, including many Big Tech giants, to attack the patents of smaller innovators, so they can use their inventions without paying licensing fees. Since the PTAB's inception, these big companies have filed thousands ofIt is clear why these big companies love using the PTAB.
The large difference in outcomes between the PTAB and courts is the result of a PTAB process tilted heavily in favor of the patent challenger , including lower standards of evidence and the ability of infringers to repeatedly challenge the same patent until it gets a favorable result.
WASHINGTON, DC - JULY 12: Senate Judiciary Committee Intellectual Property Subcommittee Chair Chris Coons and ranking member Sen. Thom Tillis talk before a hearing about artificial intelligence and copyright in the Dirksen Senate Office Building on Capitol Hill on July 12, 2023 in Washington, DC.