The post-grant system generates uncertainty – weakens patents.

In light of these problems, Congress passed the AIA and empowered the United States Patent Trademark Office (“USPTO”) to reevaluate and revoke previously issued patents through the creation of the Patent Trial and Appeal Board (“PTAB”).[2] The goal of these post-grant administrative proceedings is to serve as an efficient alternative to district court litigation and to lower the cost of invalidating low-value patents.[3] Despite Congress’s best intentions, there is still much uncertainty regarding these cancellation procedures. Contrary to congressional expectations, the U.S. patent system ranking dropped consecutively from first to tenth to thirteenth in its patent protection ranking between 2017 and 2018, receiving the lowest score in patent opposition out of all developed countries’ post-grant opposition mechanisms.[4] Such downward trend raises the question: Are these subpar ratings merely a result of the new tribunal’s growing pains which will soon subside, or do they indicate a systemic flaw of the U.S. patent opposition system?