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When you visit the website of the United States Patent and Trademark Office (USPTO), the agency describes itself as “a mechanism that protects new ideas and investments in innovation and creativity”. After over two years of debate around how to improve the patent litigation system, opponents to reform are attempting to kill momentum towards reform by suggesting that the nation throw sand into the gears of the USPTO’s mechanism for innovation and creativity. This sand comes in the form of a proposal to limit the USPTO ability to review the quality of patents after they have been granted, called inter partes review proceedings.
There are special interests in Washington that are working to hard to eliminate or curtail this right to inter partes reviews. Big Pharmaceutical companies have billions of dollars in extra benefits on the line if they can continue to make it hard for the small guy to challenge their patents. Patent trolls stand to benefit by gutting the USPTO’s review processes as well. If their patents cannot be challenged or reviewed through IPR, then they will have more opportunities they have to flood individuals and small businesses with requests for payments based on fraudulent claims.
Inter partes review at the USPTO helps to check patent trolls and improve the quality of patents in an expedited process and at a much lower cost than litigation. In a world where technology innovation proceeds at a rapid pace, it is important that entrepreneurs have an opportunity to expedite these decisions around patents that they believe were mistakenly granted. These low cost proceedings remove low quality patents that serve as barriers to new inventions have been highly successful. It is in the public interest to allow for third parties to challenge patents through these mechanisms. Consumers have a stake in the quality of patents as they benefit from both the development of inventions that patents protect, and removing the barrier of poor quality patents from future innovation.
In an appeal to compromise, some Members of Congress are contemplating changes to IPR in order to give a little something to opponents of reform. However, Members of Congress must be careful not to accept reforms that alter the effectiveness of these reviews. Proposals to change the standard used by the USPTO in their reviews could make the USPTO processes more expensive and put a thumb on the scale of large companies with funds to work through expensive legal proceedings. Similarly, proposals that allow patent owners to use amendments during IPR to sneak in new claims into their patent, potentially never examined by the Patent Office, create a loophole that could potentially lower patent quality in the long run. Opponents of patent reform wish to make USPTO review processes closer to litigation in cost, amount of legal work, and time. Such reforms will only scare away challenges at the USPTO making litigation challenges the only viable route for some, and leaving others who cannot afford those litigation costs with no viable route at all.
We may not have seen successful challenges by public interest groups like the Electronic Frontier Foundation without the inexpensive, simple reviews available at the USPTO. Public interest efforts to strike down invalid patents though the USPTO reviews are an important tool as more and more citizens are bombarded with patent troll demands. Procedures like IPR need to be protected, not gutted, if we are to defend the public from abusive patent practices.
It is time for Congress to stand up to special interests who have opposed patent reform from the beginning and to remember what is important to average citizens in these reforms, not just the concerns of billion dollar industries. Consumers not only expect litigation reform that promotes innovation, but they need processes at the USPTO that give them the ability to protect themselves from patent trolls, just as large companies do.