“By allowing both sides to file a petition, the PTAB’s invalidation rate can attract petitions from either side…. This opens the possibility to balance invalidation rates with the courts and not push the PTAB out of business.”
The PREVAIL Act addresses current rules that enable gamesmanship at the Patent Trial and Appeal Board (PTAB) by huge corporations against small inventors, startups and other patent owners, and that increase invalidation rates. It introduces standing requirements, establishes a clear and convincing evidence standard to invalidate a patent, ensures a code of conduct is put in place for administrative patent judges (APJs), and more.
While these changes are well-intended, due to the PTAB’s perverse incentive structure, the PREVAIL Act will only be marginally effective, and may have no real effect at all. In order to balance the PTAB’s currently astronomical invalidation rates, one option is to allow patent owners to petition the PTAB to review their own patents.
The PTAB was established in the U.S. Patent and Trademark Office (USPTO) by the Leahy Smith America Invents Act (AIA). Its intent was to serve as an alternative forum for challenging the validity of issued patents that is faster and cheaper than federal court.
However, the PTAB has proven to be an utter failure, invalidating 84% of the patents it fully adjudicates, adding years to court cases, and increasing costs by hundreds of thousands of dollars.
The reason for this failure is an...
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