Inter partes review is key to weakening patent trolls

The PREVAIL Act would bar most people from petitioning the U.S. Patent and Trademark Office (USPTO) to revoke patents that never should have been granted in the first place. 

The U.S. Patent and Trademark Office (USPTO) issues hundreds of thousands of patents every year, with less than 20 hours, on average, being devoted to examining each patent. Mistakes happen. 

That’s why Congress created a process for the public to ask the USPTO to double-check certain patents, to make sure they were not wrongly granted. This process, called inter partes review or IPR, is still expensive and difficult, but faster and cheaper than federal courts, where litigating a patent through a jury trial can cost millions of dollars. IPR has allowed the cancellation of thousands of patent claims that never should have been issued in the first place. 

The PREVAIL Act will limit access to the IPR process to only people and companies that have been directly threatened or sued over a patent. No one else will have standing to even file a petition. That means that EFF, other non-profits, and membership-based patent defense companies won’t be able to access the IPR process to protect the public. 

EFF used the IPR process back in 2013, when thousands of our supporters chipped in to raise more than $80,000 to fight against a patent that claimed to cover all podcasts. We won’t be able to do that if PREVAIL passes. 

And EFF isn’t the only non-profit to use IPRs to protect users and developers. The Linux Foundation, for instance, funds an “open source zone” that uses IPR to knock out patents that may be used to sue open source projects. Dozens of lawsuits are filed each year against open source projects, the majority of them brought by patent trolls. 

IPR is already too expensive and limited; Congress should be eliminating barriers to challenging bad patents, not raising more.

Congress Should Work For the Public, Not For Patent Trolls

The Senators pushing this agenda have chosen willful ignorance of the patent troll problem. The facts remain clear: the majority of patent lawsuits are brought by patent trolls. In the tech sector, it’s more than 80%. These numbers may be low considering threat letters from patent trolls, which don’t become visible in the public record. 

These patent lawsuits don’t have much to do with what most people think of when they think about “inventors” or inventions. They’re brought by companies that have no business beyond making patent threats. 

The Alice rules and IPR system, along with other important reforms, have weakened the power of these patent trolls. Patent trolls that used to receive regular multi-million dollar paydays have seen their incomes shrink (but not disappear). Some trolls, like Shipping and Transit LLC finally wound up operations after being hit with sanctions (more than 500 lawsuits later). Trolls like IP Edge, now being investigated by a federal judge after claiming its true “owners” included a Texas food truck owner who turned out to be, essentially, a decoy.