November 11, 2019
Patent Public Advisory Committee (PPAC)
Marylee Jenkins, Chair; Steven Caltrider, Jennifer A. Camacho, Barney Cassidy, Mark E. Goodson, Bernard J. Knight, Jr., Dan H. Lang, Jeffrey M. Sears, Julie Mar-Spinola, Members; Pamela R. Schwartz, Catherine Faint, Vernon Ako Towler, Union Representatives
Via email to: firstname.lastname@example.org
Subject: Follow Up on August 5, 2019 Letter Regarding PTAB Abuse
Thank you for publishing our letter of August 5, 2019. We note that you disregarded our request to discuss the issues and solicit a response from the USPTO at the August quarterly meeting. We trust that in the intervening 3 months you have shared the problems raised with the USPTO and that they will respond at the PPAC meeting on November 14, 2019.
We ask that this follow-up letter be placed into the public record. As a reminder, in our prior letter we cataloged examples of the pressing concerns that have caused inventors to lose faith in the patent system:
Overwhelming Financial Burden for Inventors
AIPLA reports that the average cost for an AIA trial is $450K. Only 16% patents emerge from the PTAB intact. Small businesses built on a patented technology don’t have $450K to wager on a 16% chance of holding on to their primary asset. Furthermore, we have been in contact with many inventors and small business owners that have retained unqualified counsel for these high stakes litigations. These attorneys are unaware of the latest guidelines, precedents, and strategies. Inventors lack access to effective advocacy when attacked in AIA trials by aggressive litigators allied with hostile PTAB APJs.
Word Games Used to Invalidate Patents
A common tactic employed by infringers and the PTAB is to interpret the words and phrases in the patent broader than intended by the inventor, and to use that stretched interpretation to invalidate the patent. Egregious examples include construing “no arcing” to mean “a little arcing”, “single merchant” to encompass multiple merchants, and “gasoline” to include butane.
Administrative Patent “Judges” Are Not Experts
The idea of the PTAB being staffed with technologists that are subject matter experts has not played out. Most PTAB APJs have a bachelors degree with zero years of professional experience in technology. They are administrative lawyers, not technologists. Analysis of their written opinions often reveals superficial wordsmithing to support a conclusion at odds with the intent of the inventor, the examiner who approved the patent, and common sense.
Interference with Article III Courts & Delayed Justice
PTAB was intended to be a faster, cheaper, alternative to district court. It has proven to be the exact opposite: slower, more costly, and in conflict with district court. It is only cheaper and faster when it puts the inventor out of business by cancelling his key patents or draining his bank account. Those that survive are hampered with millions of dollars of unnecessary expense and years of market growth lost.
Due Process, Takings, Appointments Violations
Barely one year ago, the Supreme Court ruled that patents are no longer property rights but are “public franchise rights” like the right to erect a toll bridge, thus revocation by the Executive branch does not violate separation of powers or the 7th amendment. The American ideal used to be that anyone of any status could obtain a property right in exchange for revealing their invention to the world. Today only the wealthy elite can secure these rights.
We respectfully request that the Patent Public Advisory Committee work vigorously to address and resolve these issues, and initiate an effort to restore our patent system to one that inventors can rely on to get back to work on innovation.