Final week I wrote about how the US Patent and Trademark Workplace is pushing a rule change that will successfully neuter the inter partes assessment (IPR) system that opinions already granted patents to ensure they weren’t granted by mistake. Patent tolls and different abusers of the patent system have been screaming about this technique ever because it began truly serving to cease the flood of patent trolling over the past decade and a half. They’ve now satisfied the USPTO to alter the principles with out congressional approval.
The remark interval for the USPTO to think about this variation closes immediately, so I wished to share the remark that I submitted to the proceedings (the complete PDF has footnotes, which I’m not bothering to repost right here):
The Copia Institute is the assume tank arm of Floor64, Inc., the privately-held California small enterprise behind Techdirt.com. As a assume tank the Copia Institute produces evidence-driven articles and papers in addition to different types of expressive output similar to podcasts and video games that study the nuances and assumptions underpinning know-how coverage. Armed with its insights it then recurrently submits advocacy devices similar to amicus briefs and regulatory feedback, similar to this one.
We write to oppose the US Patent & Trademark Workplace’s proposed rule modifications for inter partes assessment (IPR) present in Docket No. PTO-P-2025-0025. We oppose the rule modifications for 3 broad causes:
- The coverage change would straight oppose the rationale and intent of the patent system, doing actual harm to American innovation.
- The present IPR system, although imperfect, has been a tremendously useful software in stopping poor high quality patents from limiting innovation.
- Such modifications ought to solely be directed by Congress, not the company
The US Patent System should guard in opposition to abuse
Each James Madison and Thomas Jefferson spoke out incessantly in opposition to the very concept of monopolies, together with patents. And when it got here time to draft the mental property clause of the Structure, there was a dialogue between the 2 founders. Jefferson apparently fearful about Madison’s determination to incorporate patent monopolies within the Structure, writing to him in 1788:
[I]t is healthier to … abolish … Monopolies, in all circumstances, than to not do it in any …. The saying there shall be no monopolies lessens the incitements to ingenuity, which is spurred on by the hope of a monopoly for a restricted time, as of 14 years; however the profit even of restricted monopolies is simply too uncertain to be against that of their common suppression.
Madison responded, agreeing that such issues are “among the many best nuisances in authorities,” however satisfied Jefferson that they shouldn’t be “wholly renounced” as long as they had been very restricted and had security valves to guard in opposition to their abuse.
The IPR system is simply such a security valve, permitting anybody to guarantee that patents which have been granted actually need to be. Years later, Madison summed up his ideas on patents by saying:
Monopolies although in sure circumstances helpful should be granted with warning, and guarded with strictness in opposition to abuse.
As soon as once more, the IPR system is simply such a system that helps guard in opposition to abuse.
As each Jefferson and Madison acknowledged, government-granted monopolies are liable to abuse with out strict methods to protect in opposition to abuse. Because the US realized within the late 90s and early 2000s, our patent system was being broadly abused by non-practicing entities, typically single attorneys who would purchase up ineffective, overly broad patents that by no means ought to have been granted, and demanding giant sums of cash from corporations who had been truly innovating, and really constructing profitable merchandise.
Congress acknowledged this drawback and the way the system of presidency granted monopolies have to be “guarded with strictness in opposition to abuse” and created the present IPR system with the America Invents Act in 2011, creating the IPR course of.
The idea is easy and easy. Patent examiners are already overworked, and there’s proof that mistakenly granted patents make it by means of our system. No system is ideal. So to guarantee that patents are legitimate, Congress, in its knowledge created a course of that enabled those that got here throughout an improperly granted patent to problem it, and a course of to assessment that patent to ensure it ought to have been granted.
If the patents are legitimate, then the IPR course of reinforces that, strengthening the standard of the patent. If the patent is invalid, then the IPR course of does what Madison believed needed: strictly guarding the system in opposition to abuse.
The system has labored
Time and again, the IPR system has efficiently guarded American innovators in opposition to the abuse of presidency granted monopolies. Time and again, patents that had been mistakenly granted, which Jefferson and Madison warned would restrict innovation, have been efficiently challenged, and invalidated, defending precise innovators from having their work halted by a lawyer holding a nasty patent.
A foul patent that was used to assert that each one podcasting was infringing was fortunately invalidated through the IPR course of. Previous to that, lots of the high podcasters had been sued or threatened, and a few even thought-about stopping their podcasts. In the present day, we’ve seen that podcasts are a vital a part of our media ecosystem. They weren’t truly invented by the patent holder. Certainly, prior artwork was discovered that confirmed the claims within the patent (which was about audio cassettes, not podcasting) was predated in follow by others.
That patent by no means ought to have been granted, and precise innovators within the podcasting house had been spared due to the IPR course of.
And this isn’t a uncommon end result. Within the first decade, patents reviewed by the PTAB utilizing IPR resulted in roughly 40% of the patents challenged being dominated invalid. In different phrases, when the USPTO had an opportunity to look intently at these patents, and associated prior artwork, in lots of circumstances, they realized that the patent by no means ought to have been granted within the first place, after which corrected that mistake.
The IPR course of works. It fulfills the necessary perform that Madison insisted any patent system wanted: to zealously guard in opposition to abuse of these monopoly grants.
Solely Congress can change the system
Lastly, it is very important be aware that this transfer by the Patent Workplace exceeds its authority. Simply final yr the Supreme Courtroom made clear in Loper Vivid v. Raimondo that companies can not reinterpret statutes to succeed in outcomes Congress didn’t authorize. The America Invents Act created IPR with particular parameters. The proposed guidelines would basically alter that system—limiting when IPR can be utilized, forcing petitioners to forfeit different authorized rights, and making patents successfully unchallengeable after a single assessment—modifications that go far past the USPTO’s function in implementing the statute Congress truly handed.
If the USPTO believes the IPR system wants this sort of overhaul, the correct path is to ask Congress to amend the legislation. There have been a number of payments proposed in Congress to limit IPR, and none has handed. Congress has repeatedly declined to make these modifications by means of laws. The USPTO can not accomplish by means of rulemaking what Congress has refused to do by means of legislation.
This alone ought to finish the dialogue. The company is making an attempt to rewrite a statutory framework that Congress intentionally selected to not change, regardless of years of lobbying stress to take action. That’s exactly the form of administrative overreach that Loper Vivid was meant to forestall.
Each Thomas Jefferson and James Madison fearful a couple of patent system that will be topic to abuses. Madison felt that the system have to be guarded rigorously in opposition to such abuses. After seeing the hurt these abuses created, Congress correctly established the IPR course of, which has labored properly for over a decade.
It will be a large mistake to reject that, and return us to a world by which the IPR course of was restricted, and abuse of the patent system in opposition to precise innovators was rampant.
Please reject this proposed rule change so as to shield innovation.
Our Founders Would Abhor What The USPTO Is Doing With The Patent System
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