Big Tech lobbies for policies that weaken IP and have empirically forced Congress to pass them.

These judgements have shown Big Tech that infringement doesn’t come without legal consequences — but this solution might not have teeth for much longer. Instead of simply stopping their infringement and licensing rivals’ technologies fairly, major tech firms — including Apple and Google — are now pursuing a legal workaround. They’re trying to make it easier to invalidate rivals’ patents by pushing for legislation that would weaken IP protections. After all, if there are no patents, there can be no infringement.

Business as Usual

For years, executives at major tech firms have seen these legal judgments as just a cost of doing business. Damages for lost cases, even when stretching into the hundreds of millions, are a drop in the bucket for companies like Apple, which reported $365.8 billion in revenue in 2021. Patent theft, sadly, is a rational strategy for corporate behemoths seeking to entrench their own dominance and neutralize a threat from an emerging startup. After all, it’s cheaper to steal than to license smaller firms’ technologies.

Just over a decade ago, this strategy became even more viable. In 2011 — in part due to the urging of tech lobbyists — Congress created a tribunal within the U.S. Patent and Trademark Office (USPTO) called the Patent Trial and Appeal Board (PTAB), which was ostensibly created to provide a faster, less expensive way to settle patent disputes outside of the courts. Instead, it opened up a new avenue for Big Tech gamesmanship of the patent system. Now, deep-pocketed tech firms could simultaneously challenge smaller rivals’ patents in two arenas — in the courts and at the PTAB, where, in addition, they could file multiple and serial challenges against the same patent.

This gave major tech companies a major advantage. In many cases, after being sued by smaller rivals, large tech companies petitioned the PTAB to strike down patents that courts would potentially uphold and find tech behemoths guilty of infringing. Often the PTAB would do just that: It has at least partially invalidated 84% of the patents it has adjudicated in a final written decision. There are three main reasons for this: 1) the Board’s evidentiary standard is lower than in court, 2) repeat challenges are allowed — by the defendant, of course, but also by anyone who wants to challenge the validity of the patent for any reason — and 3) patent owners are burdened with about $500,000 per challenge, which Big Tech companies can afford, but startups often cannot.