The Patent Trial and Review Board or PTAB is the only court that handles all litigation and application concerning patents—clog won’t spill past the PTAB

The 2011 Leahy-Smith America Invents Act (AIA) is widely viewed as the most significant patent statute enacted by Congress in over 50 years. Although the AIA made many important changes to U.S. patent law, the most practically significant was the creation of the Patent Trial and Appeal Board (PTAB). PTAB is a tribunal within the U.S. Patent and Trademark Office (USPTO), the federal agency responsible for reviewing patent applications and granting patents. The AIA created PTAB and granted it authority to hear several new types of administrative challenges to the validity of patents previously granted by USPTO. These challenges, which were also created by the AIA, include inter partes review (IPR) and post-grant review (PGR). IPRs and PGRs are typically decided by a panel of three administrative patent judges (APJs). Entities accused of patent infringement have always been able to challenge the validity of patents asserted against them in federal court. Because those patents were reviewed and granted by USPTO, patents carry a presumption of validity when challenged in court. Patent invalidity must be demonstrated by a higher standard of proof (clear and convincing evidence) than the standard used for most issues in civil litigation (preponderance of the evidence). Litigating a patent case to a final judgment in a federal court is time-consuming and expensive: it typically takes several years, with average legal costs amounting to over a million dollars. In addition, because of judicial standing requirements, an entity can usually ask a court to decide the validity of a patent only if they have been sued or at least threatened with a patent lawsuit. Congress’s stated aim when creating IPR and PGR was to improve patent quality by providing a more efficient means to adjudicate patent validity issues. Congress was also concerned that poor-quality patents fueled litigation by so-called “patent trolls,” a pejorative term for patent plaintiffs that do not manufacture or sell the patented products. From the perspective of a person accused of patent infringement (or worried about being sued), PTAB procedures are often more advantageous than federal court litigation in that they are faster, cheaper, and use a lower standard of proof. By statute, IPRs and PGRs are supposed to reach a final determination no later than one year after PTAB decides to institute the proceeding. The administrative procedures are more streamlined than civil litigation, with average legal costs typically in the hundreds of thousands of dollars (as opposed to millions). In addition, PTAB does not require standing, so any person other than the patent holder can challenge a patent before PTAB. As a result, it has become common for entities sued for patent infringement in federal court or before the U.S. International Trade Commission to petition PTAB to institute an IPR and seek to challenge the patent in that forum. PTAB procedures—and IPR in particular—have aroused controversy among patent stakeholders since the enactment of the AIA. Critics of PTAB argue that it is biased against patent holders, creates uncertainty in patent rights, and discourages investment in innovation. PTAB critics further maintain that IPR is unfair to patent holders, who have successfully obtained a patent before USPTO but must now again defend their patent’s validity before the same agency.