We spoke out earlier this year about how the Patent Office was undermining the IPR process through bogus rules the Patent and Trial Appeal Board (PTAB) pushed through last year. Now, the Director is seeking to make these rules even more powerful and permanent. Now, we need EFF supporters to help us stop these dangerous changes.
Defend Strong Patent Reviews
Trump’s Patent Office Director, Andre Iancu, has instituted new policies that enable more patent abuse and help patent trolls. In 2018, Iancu claimed that small businesses and individuals who spoke out against patent trolls were spreading “scary monster stories.”
At EFF, we hear regularly from small businesses and individuals who are fighting off extortionate patent demands. We know their stories are all too real.
Now, Iancu is proposing rule changes that will sabotage the system that lets the Patent Office cancel bad patents. Congress created the IPR system in 2011, as part of the America Invents Act. It allows members of the public to go to the Patent Trial and Appeal Board and present evidence that a patent is invalid.
In the past several years, IPR has become the most important way to get the Patent Office to correct its mistakes. That’s crucial because more than 300,000 patents are granted each year, especially in the fields of software and technology; yet more than half of patents that go trial turn out to be invalid. The rate is even higher in IPR cases that go to a final decision: more than 60% of the time, PTAB judges find that all the patent’s claims are invalid.
The IPR process is faster and cheaper than fighting patents in a federal district court, which can cost millions of dollars and take years. That’s why EFF was able to use the IPR process to knock out the “podcasting patent,” whose owner falsely claimed to have invented the basic idea of podcasting—and then moved aggressively to force podcast creators to pay licensing fees.
If Iancu can push through this package of new rules, the PTAB will throw out many IPR petitions before judges even look at the challenger’s evidence.
First, the PTAB will be able to deny an IPR challenge anytime there’s a related court case against the challenger. This change alone could tear apart the IPR system, because it will let patent owners game the system. Patent trolls will be able to game trial schedules and then use them to get an IPR denied.
Second, the PTAB won’t consider more than one petition per patent—even if the petitioners are different with rare exceptions. The PTAB is supposed to consider any petition that satisfies the statute’s criteria. If the new rules pass, a patent that survives one IPR may never have to face another—even if the second IPR is based on new and stronger evidence.
Together with allied organizations, we spoke out against Iancu’s attempt to undermine the IPR process. But he’s pushing ahead anyway.
We need your help to protect IPRs. Right now, the rules are in a public comment period that continues until November 19th. We need EFF supporters to file a comment opposing the proposed rules.
The best comments will state in your own words how you’ve been affected by invalid patents, or why you’re upset that the Patent Office is considering unfair rules that are harmful to the economy and innovation.
We’re also including a sample statement that you can cut and paste. If you use the sample, please consider adding some details about your own experience or concerns with poor-quality patents or patent trolls.