By Josh Malone & Steve Brachmann
Published by IPWatchdog
Apologists for the Patent Trial and Appeal Board (PTAB), including Greene’s Energy Group and the Department of Justice continue to proffer the fallacy that the PTAB is merely “correcting” errors committed by the USPTO in issuing “bad” patents through the use of America Invents Act (AIA) post-grant proceedings to adjudicate a patent’s validity. The actual data indicates that the PTAB is instead helping infringers by overturning the examining corps and the real courts to nullify inventors’ hard earned rights. Allyson Ho, counsel for Oil States correctly argued that the PTAB is improperly intervening in property rights disputes between private parties – not “correcting errors.”
Curiously, the Trump Administration did not assign recently confirmed Solicitor General Noel Francisco or Trump-appointed Assistant Solicitor Chad Readler to make these arguments. Instead, Obama-era holdover Malcolm Stewart (who explained to Justice Alito in Citizens United that the Constitution also permits the government to ban books!) was saddled with the task of arguing for the radical theory that patents are “public rights,” like food stamps, and that the PTAB passes Constitutional muster under the mulligan theory of property rights.