PTAB’s lower bar has zero precedent and undermines innovation.

Not only does an infringer enjoy the limitless opportunities to attack a patent using reexamination, the infringer also benefits from the fact that the standard for patent validity is lower in reexamination than it is in federal court. 86 If a patent is challenged in district court, the patent is presumed valid. 87 In order for the accused infringer to invalidate the inventor's patent rights in district court, the infringer must show clear and convincing evidence that the patent was erroneously granted. 88 Presuming validity reflects the court's respect for research and expertise involved in a long and scrutinizing examination at the USPTO. 89

In contrast, during ex parte reexamination and inter partes review, the examiner determines validity of the previously allowed patent by a preponderance of the evidence. 90 Reexamination gives no deference to the initial patent examination. 91 Just as the patent was initially examined at the [*705] USPTO, the claim language is given its broadest reasonable interpretation consistent with the specification. 92 The examiner tasked with reexamination does not attack the validity of the previously-granted intellectual property right, but rather "conduct[s] a subjective examination of the claims in light of prior art." 93

Since the vast majority of reexamination requests are granted, 94 the ability of an accused infringer to force the reexamination of a patent under the same validity standard as the initial examination. undermines patent rights Further, this may diminish the incentives to invent, to disclose, and to invest if the promised patent is not given any deference under an easily-initiated reexamination. 95 With diminished incentives comes diminished inventor participation in the patent system.