Rethinking the Patent Trial and Appeal Board

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Rethinking the Patent Trial and Appeal Board: Towards Fairness and Transparency

By The Fatty Fish Editorial Team - June 1, 2023

The Patent Trial and Appeal Board (PTAB) is an administrative body that reviews and adjudicates patent disputes in the United States. There have been criticisms about the fairness and transparency of its proceedings. There have been several legislative and judicial proposals put forward to address these concerns. For example, one proposed reform is to change the claim construction standard used by the PTAB. Currently, the PTAB applies the broadest reasonable interpretation (BRI) standard, which some argue is more likely to invalidate patents compared to the standard used in district court litigation. Some have suggested adopting the same standard used in district court proceedings, which could provide more consistency and predictability.

Currently, the PTAB can initiate a review of a patent if it finds a “reasonable likelihood” that at least one claim is unpatentable. Some argue that this standard is too low and leads to an excessive number of challenges. They recommend potential changes to the standard, such as requiring a higher threshold or additional evidence before initiating a review. Other potential reforms related to the standing requirement for filing a petition with the PTAB. Currently, almost anyone can file a petition challenging a patent’s validity, leading to concerns about abusive practices by so-called “patent trolls.” Some suggest imposing stricter standing requirements to deter frivolous or abusive challenges. These are just a few potential reform recommendations by those interested in patent reform. Here is a series of opinion pieces we found of interest regarding the need for patent reform.

Counterproductive Patent Policies Threaten US Tech Leadership

In an opinion piece “Counterproductive patent policies threaten US tech leadership” for The Hill, Dan Mahaffee, senior vice president & director of Policy at the Center for the Study of the Presidency & Congress, discusses how the current patent policies in the United States are negatively impacting the country’s technological leadership. He argues that the patent system is becoming a hindrance rather than a catalyst for innovation. According to Mahaffee, there are several issues with the current patent system, including the increasing number of low-quality patents being granted, which leads to patent trolls and unnecessary litigation. These low-quality patents often stifle innovation and burden legitimate companies with costly legal battles. Additionally, he points out that the patent system favors large corporations with extensive resources to navigate the complex patent landscape, which disadvantages smaller startups and individual inventors.

Mahaffee suggests that patent reform is necessary to address these issues and fosters a more conducive environment for innovation. One proposed solution is to improve the quality of patents by conducting more rigorous examinations and reducing the number of overly broad patents granted. He adds how important it is to have a well-functioning patent system for maintaining the United States’ global leadership in technology. Mahaffee calls for policymakers, industry leaders, and stakeholders to work together to reform patent policies, and ensure that they promote innovation rather than hinder it. Read the full article on The Hill.

Fixing the PTAB: ‘Why Are We Doing It This Way?’

Writing an opinion piece “Fixing the PTAB: Why Are We Doing It This Way?” for IP Watchdog, Eileen McDermott, editor-in-chief of IPWatchdog.com, discusses a webinar held by IP Watchdog and the recommendations to reform the PTAB system. The PTAB is an administrative body that reviews and invalidates patents, but it has faced criticism for various reasons. One panelist argued that the PTAB’s current structure and practices favor challengers over patent owners, leading to an imbalance in the patent system. In addition, they highlight issues such as the low standard of proof required for invalidating patents. The panelists suggest raising the standard of proof for invalidating patents to a higher level, such as the “clear and convincing evidence” standard. This would ensure that patents are not easily invalidated and provide more certainty to patent owners.

The participants who recommended these solutions included Dr. Marian Underweiser, an Intellectual Property Professional and former IBM Executive, Hon. Kathleen O’Malley (CAFC, ret.), currently Of Counsel with Irell & Manella, Jayson Sohi, the Director of IP Strategy at Netlist, and Gene Quinn, President & CEO of IPWatchdog, Inc. Read the full article on IP Watchdog.

The Fatty Fish Editorial Team

The Fatty Fish Editorial Team includes a diverse group of industry analysts, researchers, and advisors who spend most of their days diving into the most important topics impacting the future of the technology sector. Our team focuses on the potential impact of tech-related IP policy, legislation, regulation, and litigation, along with critical global and geostrategic trends — and delivers content that makes it easier for journalists, lobbyists, and policy makers to understand these issues.