The plan severely limits judicial ability – that undermines inter partes review.

The STRONGER Patents Act forces challengers to prove invalidity with “clear and convincing evidence,” like they do in district courts, rather than the “preponderance” of the evidence standard they need to meet now. That drastically raises the difficulty, and cost, of invalidating the worst patents. In practical terms, having to provide clear and convincing evidence instead of a preponderance is like having to get the ball to the 25 yard line instead of just having to make it over the 50 yard line.

Congress didn’t create IPR with a different standard by accident. This bill would undo the whole purpose Congress had in creating inter partes review in the first place: it’s supposed to be easier to invalidate wrongly-issued patents, by putting them before administrative patents judges with relevant technical expertise.

Those judges shouldn’t be hamstrung by a bill that would limit their ability to review, and cancel, patents that should never have issued. The presumption of validity is supposed to reflect public confidence in the Patent Office’s examination procedure, not shield unexpired patents from meaningful review at the Patent Office.