CALL TO ACTION: U.S. SENATE THREATENS TO EXTEND PATENT INVALIDATION PROGRAM

Patent Invalidation Background

patent-emblem - US InventorThe America Invents Act of 2011 caused great harm to the rights of inventors in the U.S. The worst part was the creation of the Patent Trial and Appeal Board (PTAB).

  • The PTAB is a division of the USPTO that invalidates patents.
  • The PTAB has invalidated 84% of the patents they have reviewed (2,421 out of 2,872).
  • There is no right to a jury trial at the PTAB.
  • Compared to a regular court, the PTAB limits evidence, testimony, due process, and procedural safeguards.
  • Compared to a regular court, the PTAB has a lower burden of proof for invalidation (preponderance rather than clear and convincing).
  • Most PTAB administrative patent judges have no technical experience and minimal legal experience.
  • PTAB administrative judges often overrule examiners and federal judges who previously held a patent to be valid.
  • The PTAB is benefits mostly large corporations – top patent challengers include Apple (650 petitions), Samsung (540 petitions), Google (337 petitions), and Microsoft (224 petitions).
  • It costs an average of $450,000 to defend a patent at the PTAB.
  • PTAB typically adds 2 to 5 years to the duration of a lawsuit.

The bottom line is that the PTAB has been set up to benefit the largest corporations in the world by preventing small companies from enforcing our patents. This has the effect of stifling competition and development of new technologies, causing the U.S. to lose its place as world leader in innovation.

The U.S. Senate is Planning Harmful Legislation to Extend the PTAB

Despite the devastation wrought by the PTAB, the Senate is deliberating on an extension. The PTAB has 3 components:

  • Inter Partes Review (IPR) – allows challenges for the life of the patent, but only on §102 (novelty) and §103 (non-obviousness)
  • Post Grant Review (PGR) – allows challenges in the first 9 months of a patent on any ground – §101 (eligibility), §102 (novelty), §103 (non-obviousness), or §112 (written description & enablement)
  • Covered Business Method (CBM) – allows challenges for the life of the patent on any ground, but only for patents that cover “business methods”

The CBM proceeding is set to expire this month. That would be some progress for our movement to restore justice for inventors. Perplexingly CONGRESS IS PLANNING TO RENEW THE PTAB CBM PROGRAM. This makes no sense at all. The PTAB has virtually ruined our patent system which once was the envy of the world. At US Inventor we have been educating lawmakers to reform, limit, or abolish the PTAB in order to get our nation back on track. The expiration of CBM is a step forward. It must not be extended. Click here to learn more.

HARMFUL LEGISLATION WILL BE ENACTED WITHIN DAYS.

1. CALL YOUR SENATORS

Calling is very effective. It only takes a few calls on an obscure issue like patents for a Senator to come to realize it is an important issue. Especially when the caller is an inventor or entrepreneur who is an expert on the subject (you may not feel like an expert, but you are).

Call the Capital switchboard at (202) 224-3121 and ask to speak to each of your Senators (it will require two separate calls).

  1. Tell them to STOP THE CBM EXTENSION. Ask them to oppose the effort by Senator Blumenthal (CT) and Senator Perdue (GA) to extend the Covered Business Method patent invalidation program. It is a favor for banks and other big corporations and harms legitimate inventors.
  2. Ask to set an appointment to speak to a staff member in more detail about the PTAB (we will assist and/or join the meeting). The Patent Trial and Appeal Board is the tribunal that overseas IPR, PGR, and CBM. After CBM expires we need Congress to work on reforming the remaining components of PTAB ( IPR and PGR) which have 84% invalidation rates. Once a meeting is scheduled, contact us at info@usinventor.org so we can prepare.

Here is a sample script you can use for your call:

My name is _________. I am an inventor and business owner from ___________________. I would like to speak with someone about patent legislation that is being debated. Could you connect me with the appropriate person?I have been informed by US Inventor that Senator Perdue and Senator Blumenthal are attempting to extend the CBM patent invalidation program. CBM stands for Covered Business Method, one of several procedures used by the Patent Trial and Appeal Board (PTAB) to invalidate patents. These procedures have been devastating for inventors and startups like mine, resulting in over 80% of patents being invalidated.

CBM was supposed to expire on September 16, 2020. It must not be extended. The PTAB must be curtailed, rather than extended, so that inventors and startups can compete and bring our inventions to market. Will Senator ____________ oppose the Perdue/Blumenthal CBM extension?

2. WRITE TO YOUR SENATORS

Writing lays the ground work and initiates the process of getting a lawmaker to analyze a new issue. We need to generate enough letters on this issue so that they have to look into the issue and develop a response.

Go to https://democracy.io and enter your address to compose a letter to your Senators. Fill out the form and compose a letter. Here is an example you can use or modify (be sure to fill in the blanks!).

My name is _________. I am an inventor and business owner from ___________________. I write to ask you to oppose the legislation advanced by Senator Perdue and Senator Blumenthal to extend the CBM patent invalidation program. CBM is Covered Business Method, one of several procedures used by the Patent Trial and Appeal Board (PTAB) to invalidate patents. These procedures have been devastating for inventors and startups like mine, resulting in over 80% of patents being invalidated.

CBM was supposed to expire on September 16, 2020. It must not be extended. To the contrary, the PTAB must be curtailed, rather than extended, so that inventors and startups can compete and bring our inventions to market. Will you oppose the Perdue/Blumenthal extension?

Thank you for considering my request.

Sincerely,

______________

We need volunteers. Email josh@usinventor.org to discuss how you can help.

US Inventor, since its founding, has supported the innovation efforts of the “little guy” inventors. We are proponents of “securing for limited times to … inventors the exclusive right to their … discoveries” in order to “promote the progress of Science and Useful arts.” (U.S. Constitution Article I, § 8, Clause 8.) Our broad experience with the patent system, new technologies, and creating companies, gives us a unique perspective.