Big tech uses the narrative of "patent trolls" to stifle innovation

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.

This unprecedented political access combined with tens of millions of dollars in massive lobbying and policy advocacy ultimately paid significant dividends for Google, Intel, Microsoft, and other Big Tech companies. These entities successfully created and spread the narrative through academic articles, conferences, and op-eds that “patent trolls are killing innovation” with “bad patents”—to the point at which there are few people left in America who have not heard of the “patent troll,” despite many being barely aware of or knowledgeable about the patent system itself.

This narrative has proven incredibly difficult to dislodge from the minds of policymakers. In fact, many Big Tech companies and others continue to push it in policy arguments to this day.33 It has led to extensive legal and institutional changes in the U.S. patent system, including the creation of the PTAB in the AIA in 2011.

In response to this narrative, Congress created the PTAB to be an administrative tribunal that could “efficiently” cancel patents.34 Here, “efficiency” means the PTAB is supposed to operate cheaply and quickly.35 Congress thus imposed very few restrictions on the PTAB.36