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Republican Rep. Thomas Massie of Kentucky has reintroduced a bill that would abolish the Patent Trial and Appeal Board, return the U.S. to a first-to-invent system and overturn the U.S. Supreme Court's landmark Alice and Mayo decisions on patent eligibility.

Introduced on Thursday in the House Judiciary Committee, the Restoring America's Leadership in Innovation Act would also undo the Supreme Court's eBay decision, which U.S. Circuit Judge Kathleen M. O'Malley said recently makes it nearly impossible for patent owners to get injunctions in U.S. courts.

NEW YORK(Reuters) - In August, a dozen inventors gathered around a fire pit outside the headquarters of the U.S. Patent and Trademark Office in Alexandria, Virginia, and set alight patents they said had been rendered worthless by an overreaching federal government.

"It's time for us to make patents great again," Michael Caputo, an advisor to Donald Trump's presidential campaign, told those gathered. US Inventor, the group behind the protest Caputo now represents as a spokesman, is calling for the abolition of the U.S. Patent Trial and Appeal Board, an administrative tribunal run by the patent office that reviews the validity of patents.

The nationwide shortage of medical equipment to fight the coronavirus pandemic seems like a breakthrough opportunity for 3D printing technology. But in this urgent crisis, its uses are limited. Why it matters: America needs to manufacture tens of thousands of ventilators and billions of face masks and other protective gear in the next few weeks, and then distribute them in a hurry to hospitals around the country to ward off the worst-case public health scenarios. Reality check: Industrial-scale 3D printing could help in a few scenarios, like making fast prototypes or fabricating plastic face shields, but it will not save the day when it comes to the most urgent needs, which are ventilators and N95 respirator masks. How it works: There are an  installed in the U.S., according to Forbes, most of them idled at the moment due to coronavirus-related industry shutdowns. With the proper digital instructions, companies and even do-it-yourselfers can start fabricating objects almost immediately using a 3D printer. Known as additive manufacturing, 3D printing "grows" an object one thin layer of plastic — or metal — at a time. With multiple machines, even in different locations, it is feasible to 3D print thousands of small components fairly quickly. But the technology is not as fast, or as consistent, as traditional manufacturing methods like injection molding, says Carnegie Mellon engineering Professor Jack Beuth, an expert in the field. While it takes longer to get traditional manufacturing up and running, "with injection molding, you can outrun 3D printing pretty quickly," Beuth says. Even more daunting are the regulatory hurdles that make 3D printing impractical for making medical device components. Manufacturing life-saving equipment is subject to rigorous certification protocols, which takes time. "You can’t just say, 'I’m going to print it, it looks good, we’re good to go'," said Beuth.

Once touted as a technology that would revolutionize manufacturing, 3D printing, also known as additive manufacturing, has recently seen a noticeable slowdown in innovation. This stagnation is surprising, given the early promises of transforming production methods across industries. Let’s explore the factors contributing to this slowdown and the current state of 3D printing innovation.

High Costs and Accessibility Issues

Contrary to what some say, 3D printing is not going to revolutionize the manufacturing sector, rendering traditional factories obsolete. The simple fact of the matter is the economics of 3D printing now and for the foreseeable future make it an unfeasible way to produce the vast majority of parts manufactured today. So instead of looking at it as a substitute for existing manufacturing, we should look to new areas where it can exploit its unique capabilities to complement traditional manufacturing processes.

Additive manufacturing, or “3D printing” as it is commonly known, has understandably captured the popular imagination: New materials that can be “printed” are announced virtually every day, and the most recent generation of printers can even print several materials at the same time, opening up new opportunities. Exciting applications have already been demonstrated across all sectors — from aerospace and medical applications to biotechnology and food production.

The original justification for the PTAB was that the U.S. innovation economy was awash in invalid patents exploited by “patent trolls” preying on small businesses that could not afford the high cost of patent litigation in court in defending their lawful activities. This argument was more opportunistic lobbying rhetoric than legal or economic fact;26 it created a faulty narrative that the patent system is “broken” and stifling innovation.27 The entities responsible for pushing this policy rhetoric and lobbying narrative—and creating a moral panic about the patent system in Washington, DC—were Google, Intel, and other Big Tech companies,28 as well as the myriad advocacy groups and scholars funded by them.29

Political Access. The PTAB was created in 2011 in the AIA, and when the AIA was enacted by Congress and signed into law by President Barack Obama, Google and other Big Tech companies were already spending tens of millions lobbying Congress.30 In addition to these exorbitant sums spent lobbying Congress, it was reported in 2016 that Google lobbyists met regularly with President Obama—on average, once per week.31 The frequency of these meetings far exceeded access by any other large companies to President Obama.32 President Obama was metaphorically on Google’s speed dial, as Gen Xers would say, or, as today’s mobile generation would put it, Google needed political access to President Obama, and it made a (metaphorical) app for that.

I was told that elected officials count on—in fact, they need—constituent input to be effective legislators. After my patents were unjustly cancelled at the Patent Trial and Appeal Board (PTAB), I started the journey to do this very thing.

Since January of 2022, I have visited Congress and the Senate two dozen times. I have visited over 200 offices telling my story and advocating for the “little” inventors, like me.

The AIA aimed to increase patent quality through a number of administrative procedures. 147 Postgrant proceedings certainly have the potential to invalidate improperly granted patents, including the overly broad ones on which patent trolls heavily rely. In postgrant proceedings before the Patent Trial and Appeal Board ("PTAB"), "rules are stacked in favor of the challenger," the challenger being the target business in an administrative action against a patent troll. 148 Further, patents "do[] not enjoy any presumption of validity" before the PTAB, whereas patent validity is presumed in district courts. 149 Finally, the claim construction standard before the PTAB is much broader than the standard before the district courts. In district courts, claims are given their "ordinary and customary meaning" with construction aimed at preserving validity when possible; in the PTAB, claims are given their "broadest reasonable interpretation," with no attempt to maintain claim validity. 150 This difference means that it is likely easier to find a patent invalid as anticipated or obvious by prior art in a proceeding before the PTAB than before a district court judge since a broader construction means a greater number of prior art references could potentially fall within the scope of the challenged claims. 151

Even with such potential, administrative proceedings may prove ineffective at combating patent trolls. The scope of review under an IPR is limited. Only a patent's validity under 35 U.S.C. § 102 (novelty) or § 103 (obviousness) may be challenged, and "only on the basis of prior art consisting of patents or printed publications." 152 Section 101 (patentable subject matter) challenges and section 112 (disclosure requirements) cannot be brought in an IPR. 153 Further, a patent's enforceability cannot be challenged in an IPR by raising an inequitable conduct defense. 154

Yesterday we published an article authored by Karl Fazio, who is Chief Patent Counsel for Pearson. In the article Mr. Fazio begins by interchangeably using the terms patent troll, non-practicing entity and patent assertion entity. While there is certainly a contingent within the industry that view virtually all patent owners as bad actors when they choose a licensing business model, and then sue for infringement when licenses are refused, I do not find that type of rhetoric particularly useful.

I am not alone. The FTC recently acknowledged the term “patent troll,” which has widely been used to vilify all patent owners and not just those committing abuses of the patent litigation system, isn’t helpful. “In the Commission’s view, a label like ‘patent troll’ is unhelpful because it invites pre-judgment about the societal impact of patent assertion activity without an understanding of the underlying business model that fuels such activity,” the report reads. The FTC’s official position against the use of the term “patent troll” hasn’t filtered down into the debate, unfortunately.

The PTAB system allows for repetitive challenges of the same patent — whether within the PTAB or in combination with lawsuits in the court system. These duplicative challenges are prevalent and include either multiple parties attacking the same patent or multiple challenges brought by the same party. These duplicative challenges impose immense burdens on patent owners and on the PTAB itself.

Recent research reveals both types of duplicative challenges within the PTAB: (1) multiple parties attacking the same patent and (2) multiple challenges brought by the same party. For inventions in the chemical, electrical, and computers and communication fields, for instance, most of the patents subject to petitions for review at the PTAB are in fact challenged multiple times again and again in filing after filing.60 In extreme cases, some patents are subjected to dozens of PTAB attacks in these serial petitions. One recent study illustrated this by comparing the share of petitioners who were previously sued (for patent infringement) with the share of petitions with at least one petitioner who had been sued on the patent. For patents related to drugs and medical technology, for instance, 48.5% of the petitioners had been previously sued on the patents they challenged, but 70.8% of the petitions had at least one already-sued petitioner.61 As a practical matter, this means petitioners who are not defendants (in court) are joining petitions that have been filed by prior defendants.62 At the very least, there are multiple petitioners challenging the same patent, and many were serial filings of petitions. Multiple challenges have real costs. When a company must spend financial resources to repeatedly defend the same patent again and again, it cannot invest those resources in additional innovation, recruitment of talent, or operational expansion, among other things.

The wealthy investors who file these abusive lawsuits, and are often referred to as “patent trolls,” buy up portfolios of broad, unused patents that, in many cases, the U.S. Patent & Trademark Office (USPTO) never should have issued in the first place. They then assert the low-quality patents in lawsuits to accuse others of patent infringement – all this even though the patents being asserted will continue to go unused. 

The impact on American innovation is devastating.  each year, patent trolls create $29 billion in direct, out-of-pocket costs from the companies they go after.  found that the companies that settle with patent trolls, or lose to them in court, wind up reducing investments in research and development by an average of more than $160 million over the next two years.  Massive amounts of money are being drained from the hardworking people who are driving our economy forward to instead line the pockets of wealthy investors who are offering no goods or services of their own.

President Biden and Democratic Party leaders are trying to take credit for seeding the next generation of innovations in the information technology sector. Crowing about their latest industrial policy, the CHIPS and Science Act, Senator Schumer stated that “the federal government [is] taking back the reins, putting money where its mouth is when we say we want the future of tech to be stamped: ‘Made in America.’”

The politicians are correct that the information technology sector is a crucial driver of economic growth that creates tens of millions of jobs, trillions of dollars in income, and improves our daily lives. The problem is that IT is constantly in flux and today’s leaders can quickly become tomorrow’s laggards.

In many instances, it may be advantageous to challenge patent validity via an AIA trial in front of the Patent Trial and Appeal Board (PTAB). Despite all of the advantages to an AIA trial, a potential AIA trial petitioner should also consider the potential downsides particularly when involved in concurrent district court litigation. One such potential downside – that the denial of a petition for an inter partes review (IPR) may be used against the petitioner – is illustrated by a recent summary judgment decision in the District Court of the Southern District of Ohio.1

Procedurally, the litigation involves a pattern that has become quite common with the availability of AIA trials. Proctor & Gamble (P&G) filed suit alleging infringement of patents relating to tooth whitening products and the alleged defendants then took the patent validity challenge from court to the PTAB. Specifically, P&G sued Team Technologies alleging infringement of three patents pertaining to home tooth whitening products (U.S. Patent Nos. 5,891,453 (the '453 Patent); 5,894,017 (the '017 Patent); and 7,122,199 (the '199 Patent)). Defendants Clio USA, Inc. and Brushpoint Innovations, Inc. were added at a later date. 2 Clio filed an IPR for each of the patents-in-suit. The PTAB denied institution of the IPRs for many of the challenged claims, and granted as to a small number of the claims.3 Meanwhile, the District Court refused to stay the proceeding pending outcome of the IPRs.

Inter partes review ("IPR") was introduced by the America Invents Act ("AIA") to provide a trial-like proceeding for challenging the patentability of patent claims based on patents and printed publications. An IPR trial is often conducted in parallel with United States district court litigation involving the same patent, with an accused infringing party in the litigation filing a petition before the United States Patent and Trademark Office's ("USPTO") Patent Trial and Appeal Board ("the Board") seeking a partial patentability review of the patent.[1] For the IPR trial to be instituted, the petitioner must establish a reasonable likelihood that it will prevail in showing unpatentability of at least one challenged claim. After institution, the AIA provides the patent owner with the opportunity to file a motion to amend the patent by cancelling any challenged claim and proposing a reasonable number of substitute claims. 35 U.S.C. § 316(d)(1).

Amending claims in IPR proceedings, however, has proven to be exceedingly difficult.[2] Amendments in IPR proceedings are proposed by motion, and amendments are not entered as a matter of right. Rather, the patent owner bears the burden of proof to establish that it is entitled to the relief requested in the motion to amend, and if the motion is granted, the proposed substitute claims are added to the involved patent without examination. Accordingly, the Board has required that the patent owner show patentability over all prior art known to the patent owner, and not just over the references applied by the petitioner against the original patent claims. Patent owners have struggled in meeting this requirement and others (e.g., requirements relating to form and showing written description support for the amendment, etc.), and thus far, only a single motion to amend has been granted by the Board. To further add to the difficulty of amending in an IPR proceeding, a patent owner is permitted to file only a single motion to amend, and the petitioner may file papers opposing the motion.

Parallel litigation: overview • Parallel litigation: a scenario in which petitioner, patent owner, and the patent at issue are simultaneously engaged in a PTAB proceeding and litigation in another venue. • The vast majority of petitioners (about 80% or higher) have been sued by patent owners in another venue prior to filing their petitions.

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The inter partes review (IPR) is an administrative procedure conducted by the Patent Trial and Appeal Board (PTAB), an adjudicative body within the U.S. Patent and Trademark Office (USPTO). IPR provides an opportunity for third parties to challenge a patent’s validity after it has already been granted. A petitioner can file a petition with the PTAB to “institute” IPR. If the review is instituted, the PTAB considers the evidence presented and issues a final written decision, either holding the patent valid or striking it down as invalid. Although IPR was introduced as an alternative to litigation, it is often used alongside litigation. In response to this dual track, the PTAB has introduced a practice of exercising discretion in determining whether to institute or deny institution of an IPR.

The PTAB’s discretionary-denial practice uses the NHK-Fintiv factors, established in two precedential PTAB decisions, that allow the PTAB to consider the progress of a parallel court proceeding in its decision whether to institute. The PTAB’s use of these factors has created controversy and uncertainty for stakeholders, who have found it difficult to predict whether the PTAB will exercise its discretion, and whether their valuable patents may be deemed invalid as a result.

In just the past few decades, smartphones, tablet computers and video communications have changed the way we do business and go about our lives.

Policymakers who believe in allowing businesses to operate and innovate free from excessive interference - as did both Kemp and President Ronald Reagan - often look to unnecessary, counterproductive government interventions as the source of free-market constraints.

New migrants pouring into the U.S. after the Biden administration let a COVID-19 restriction called Title 42 expire last week will not break the nation’s stretched court system. The system is already shattered, according to several former judges, immigration experts, and Department of Homeland Security data.

The average wait time for a “Notice to Appear” before a judge at one of the nation’s 66 immigration courts is now four and a half years. In some cities it is much longer. In New York City, new migrants do not have to appear in court until 2032. This growing backlog creates an incentive for more people to cross the border and request asylum as each new case pushes assigned court dates further into the future. In the meantime, many migrants are permitted to live and work in the United States.

The pandemic worsened problems that already had caused state and local court delays, legal experts say. The hurdles include insufficient funding, judicial vacancies, lawyer shortages and delays processing digital and physical evidence.

Some state legislators are particularly focused on shortages of prosecutors and judges. In Georgia, New York and Vermont, for example, lawmakers have filed or plan to offer bills that would increase prosecutor pay, boost the number of judges or streamline procedures to reduce the number of cases.

This type of case poses a significant dilemma for stare decisis in the federal courts of appeals. Under the law of the circuit doctrine, circuit precedents are binding on that court unless a majority of active judges in the circuit overturn a decision in an en banc proceeding or the precedent is directly overruled by the Supreme Court.6 But in some circuits, when a Supreme Court decision casts doubt on—without directly overruling—a prior circuit precedent, a panel of court of appeals judges can overrule that precedent and bypass an en banc proceeding.7 In other circuits, a panel’s authority to overrule circuit precedent under these circumstances is very narrowly circumscribed.8 This type of situation commonly arises when the Supreme Court interprets a statute that bears some relation to the one addressed by a circuit precedent. The issue also presents itself when the Supreme Court interprets the same constitutional or statutory provision as the circuit precedent but considers different factual subject matter.

The problem of undermined-but-not-overruled circuit precedent is a recurring dilemma for federal courts of appeals.9 The Sixth Circuit, for example, recently faced this dilemma in Jacobs v. Alam.10 The plaintiff filed a Bivens11 action against federal law enforcement agents to recover damages for excessive force, false arrest, malicious prosecution, fabrication of evidence, and civil conspiracy.12 The Sixth Circuit (but not the Supreme Court) had previously recognized Bivens claims for damages in all of those contexts.13 But after those Sixth Circuit decisions, the Supreme Court decided Ziglar v. Abbasi, which concluded that if a case presents a new Bivens context that is “different in a meaningful way from previous Bivens cases decided by [the Supreme] Court,” then the deciding court should not make a Bivens remedy available if there are “special factors counselling hesitation.”14 The Sixth Circuit panel in Jacobs recognized that had Abbasi not been decided, “defendants’ appeal would have no merit” under circuit precedent.15 But although Abbasi did not directly overrule those Bivens circuit precedents,16 the decision called into question whether they were still good law, or whether the court needed to perform a special factors analysis. Ultimately, the Jacobs panel did not “deem these Sixth Circuit precedents inconsistent with Ziglar [v. Abbasi],” and thus, it concluded that it was bound to follow them without resort to a special factors analysis.17