Patent owners do not like IPRs despite what Bloomberg Law, AIPLA study says

By Gene Quinn & Steve Brachmann
February 6, 2017

“Those pointing to the prospect of a gold platted patent might as well be pointing to a pot of gold left by a Leprechaun at the end of a rainbow; gold plated patents and Leprechauns seem equally real based on the real life experiences of actual patent owners with the PTAB.”

LeprechaunOn Thursday, February 3rd, legal intelligence firm Bloomberg Law and legal professional association American Intellectual Property Law Association (AIPLA) released the results of a survey entitled Patent Owners, Petitioners Not Far Apart on PTAB Value. According to Bloomberg and AIPLA, the survey suggests that complaints from patent owners and other stakeholders in the U.S. patent system surrounding high patent invalidation rates at the Patent Trial and Appeal Board (PTAB) “have largely subsided.” The report argues that patent owners find value in PTAB trials and that inter partes review (IPR) challenges are beneficial.  Simply stated, the conclusions reached defy common sense, do not comport with the experience of actual patent owners, and the survey does not hold up to even cursory scrutiny.

The problems with the Bloomberg/AIPLA survey are numerous, and will undoubtedly be misused by those who want to push the false narrative that patent owners and innovators in general find challenges to their patents to be a good thing from which they derive real benefit.  “Who could possibly find benefit in paying hundreds of thousands of dollars to defend a patent before making one dime? That’s neither intuitive or practical,” said Warren Tuttle, President of the United Inventors Association. “A far more likely scenario is that large entities wish to efficiently infringe upon patent rights with the prospect of getting new technology for free. This survey does not speak to the reality that I know independent inventors and entrepreneurs face.”

Tuttle is, of course, correct. It is impossible to believe that patent owners think it is beneficial to have their patents challenged after they spent 5 to 10 years to obtain them at a cost of many tens of thousands of dollars. It is absurd to believe that patent owners think it is beneficial to have their patents challenged when a typical challenge will run anywhere between $500,000 to $1 million in attorneys fees through conclusion. It seems doubtful that a poll of actual patent owners would ever find it to be beneficial to have to defend a patent that is supposed to be presumed valid in a proceeding where the patent will not be afforded any presumption of validity. Furthermore, many patent owners are subjected to multiple, repeat challenges that number in the dozens. Some patent owners have 6 or 8 IPRs filed on the same patent, sometimes more.

“Independent inventors and many startups have no assets so a patent must be able to attract the investment needed to build assets,” explained Paul Morinville, an inventor, patent owner and Member of the Board of Directors of U.S. Inventor. “IPR’s have gutted the value of small patent portfolios and that has gutted investment in independent inventors and patent centric startups. This survey obviously did not ask the right set of people.”

“The article seems to gloss over the fact that the majority of patent owners do not favor the existence of the AIA procedures,” said Bob Stoll, currently a partner with Drinker Biddle and former Commissioner for Patents with the United States Patent and Trademark Office. “If anything, the study can be used to support the premise that further reforms are needed.”

Morinville and Stoll are, of course, correct. It shouldn’t be all that surprising that the survey flies in the face of everything we know and comes to the wrong conclusions. The truth is patent owners and innovators loathe IPRs, but no patent owners or innovators who were at all likely to hold negative views of IPRs were included in the survey, which has to make one wonder. Was the survey merely statistically invalid? Perhaps, but given how the conclusions are so contrary to conventional wisdom and the survey sample so ridiculously small and did not include those constituencies known to be suffering at the hands of IPR, one has to wonder.

“Regardless of one’s position on IPR’s, as our recent presidential election has shown, all surveys, especially ones involving a small, non-representative sample, should be interpreted with skepticism,” said Robert Rauker, medical device company CEO, patent owner and inventor.

Not only was the sample size ridiculously small and non-representative, but it is also quite misleading to suggest, as the survey does, that it actually reflects the opinion of patent owners. The survey included no actual patent owners as respondents. Instead, the study itself notes that the survey, which was available online last year from mid-November to mid-December, was completed by a total of 167 patent attorneys. So anytime the study says that it’s portraying the opinion of a patent owner (which it does, numerous times), it’s actually only portraying the opinion of a patent attorney that has represented a patent owner. That may seem a small, inconsequential point, but if you dig deeper it becomes quite indicative of a biased sample.

“How many responses were filed by the same high tech companies that pushed for the passage of the AIA and were pushing for additional patent reform,” asked John Calvert, current Executive Director of the United Inventors Association and a former Associate Commissioner for Patents at the USPTO. “Until the results can be broken down into finer statistics, we cannot truly understand what the inventor community really thinks of the way AIA affects the strength of patents since it’s passage.  All we have in this report are general facts from the 167 respondents, 62 of who are in-house attorneys.”

Calvert raises an excellent question. How many of those patent attorneys surveyed and characterized as patent owners are from companies that engage in a never ending quest for more patent reform, like Google? We know that 70% of the corporate respondents came from Fortune 1000 companies; which means they come from the largest companies in the world and have at least $1 billion in annual revenue. That factor alone suggests a substantial skewing of what was already an extremely small sample size. We know that large entities are the ones who have been engaging in efficient infringement schemes and filing large numbers of IPRs so they do not have to pay for the patent rights they trample. Google, for example, is one of the largest patent acquiring companies in the world, which absolutely makes them a patent owner. Still, they are famously (or perhaps infamously) known as the company behind the push to weaken the U.S. patent system. Microsoft is another company that is a massive patent owner, but files numerous IPRs, sometimes multiple IPRs against the same patent on the same day. Only asking attorneys and having 70% of the corporate respondents, who presumably represent the “patent owners” in this survey is problematic.  How can you actually assume these large corporate entities that engage in near collusive efforts to ignore patent rights and efficiently infringe really represent the broad category of patent owners? Based on the survey details there is real reason to suspect that the so-called “patent owners” were more wolves in sheep’s clothing than anything else.

But let’s step back for a minute and try and apply a scintilla of logic. How could any patent owner be in favor of IPRs and really believe they create a “gold plated” patent anyway?  Sure, in theory that make sense, but in practice that isn’t what is happening.

While winning at the conclusion of the IPR would to some extent “gold plate” the patent with respect to novelty (35 U.S.C. 102) and obviousness (35 U.S.C. 103), the patent is still susceptible to challenges in court for lacking patent eligible subject matter (35 U.S.C. 101) and for an inadequate description (35 U.S.C. 112). And if you’ve been paying attention over the last several years you realize the most difficult challenges to most patents come thanks to the so-called Alice/Mayo framework, which is the Supreme Court mandated application of 101. Moreover, if the patent owner prevail in a post grant challenge at any time before a final written decision there is absolutely no estoppel effect whatsoever. Further still, the PTAB doesn’t even have to issue a decision that addresses all of the claims challenged. So there is likewise no estoppel effect with respect to challenged claims not subject to a final written decision. And just because you win one IPR challenge doesn’t mean that another entity can’t bring another IPR challenge, and just because you prevail in an institution decision doesn’t mean further challenges cannot be brought and instituted. And then, of course, there is the fundamental lack of due process afforded patent owners at the PTAB (see here and here), the inability to amend claims despite the statute giving patent owners the right to amend (see here, here and here) and the PTAB being able to ignore even timely submissions made as a matter of right. Thus, those pointing to the prospect of a gold platted patent might as well be pointing to a pot of gold left by a Leprechaun at the end of a rainbow; gold plated patents and Leprechauns seem equally real based on the real life experiences of actual patent owners with the PTAB. Indeed, the PTAB is simply not a hospitable forum for patent owners, period.

“It is not surprising that there would be many patent owners who believe that IPRs could, on some level, be beneficial to them – after all, that’s what they were promised in the AIA. But I really wonder whether all respondents operate under the correct assumptions, or have been following the case law closely,” said Hans Sauer, Deputy General Counsel for IP at the Biotechnology Innovation Organization (BIO). “For example, patent owners who believe that their adversaries will be subject to robust estoppel if they lose in an IPR must not have read Shaw Industries. Any patent owner who has defeated an IPR petition, only to see renewed petitions using the prior non-institution decision as a how-to guide, is likely to take a dim view of the proceeding. Patent owners who believe the PTAB will diligently resolve issues for district court litigation must never have run into the Board’s “redundant grounds” practice, under which presented grounds are neither instituted nor denied on the merits, only to hang out there for re-assertion later. Patent owners who believe that the 1-year litigation time bar will protect them from having to re-litigate their patent in the PTAB must never have experienced “proxy” IPR petitions by dubious third party petitioners. Variations of the “multiple bites at the apple” theme simply abound in IPR. This is good for IPR petitioners, but it’s unambiguously bad for patentees.”

All excellent points raised by Sauer. IPR is unambiguously bad for patent owners and it is impossible to believe any independent inventor, start-up, university, biotechnology, manufacturing or pharmaceutical company would ever say or even suggest IPRs are beneficial. In fact, biotech and pharma companies have been complaining for years about IPRs and seeking some kind of legislative solution that would remove their patents from being able to be challenged in IPR. That doesn’t sound like a position that two major industries would take if they felt IPRs were beneficial, does it?

And this underscores a huge problem with this survey. Everyone familiar with how biotech and pharma companies think know that they don’t believe what is reported by Bloomberg and AIPLA. It is well known that they are lobbying very hard for a legislative fix, and yet there is no pause or question raised? The results make no sense, they fly in the face of logic and real world practice, and that alone should have raised significant questions about the credibility and reliability. “There are no results from actual patent owners, independent inventors, entrepreneurs or small businesses,” Calvert said.  “More information from a wider range of respondents is needed to give a true picture of the effect of IPRs and other aspects of the AIA.”

Something is seriously askew and Bloomberg and AIPLA should have known it rather than release a report like this that will be fundamentally misused. That is particularly true given that the AIPLA has been on record supporting significant reforms to post grant challenges, specifically being supportive of the STRONG Patents Act submitted in the 114th Congress by Senator Chris Coons (D-DE). Does this survey suggest a shift in AIPLA’s belief that something needs to be done about the post grant procedures at the USPTO? That would be highly unusual given that they just submitted comments to the USPTO again raising significant concerns about certain aspects of post grant practice. Did they even stop to think about how this flawed, inaccurate, non-representative survey would undercut the positions they are taking?

Even if the study truly did reflected the opinions of actual patent owners, which it does not, the study itself calls into question its findings by pointing out that one major segment of the patent owning community was barely represented. For example, only three respondents identified themselves as representing patent aggregators or licensing entities. The study’s authors even acknowledge that these entities perceive that both license and patent value are lower than they were before inter partes review (IPR) proceedings existed. Of course, having only three respondents representing with that point of view allowed the report to marginalize these view as outlier opinions. But these are are not outlier opinions! For crying out loud the view that patent values are lower isn’t even an opinion, it is fact.

Then again, having the right disclaimer absolves all misleading suggestions apparently, or so it would appear that is the sentiment. The closing comments section of the PTAB study starts with:

“The explanations in the previous section and other conjecture in this paper are intriguing and call for more study of the phenomena recorded in the results. And a real-data statistical analysis of the link between outcomes in the PTAB and district court final dispositions is still wanting.”

No kidding. A real-data statistical analysis is what you would expect when you hear from an organization representing an entire sector of the legal world along with one of the most trusted names in business news and analysis. But it appears that we didn’t get one in this case, although they did go with results that are unreliable and absurd on their face, which is truly unfortunate.

“I am concerned with the reporting of this survey as there is nothing to suggest that independent inventors, entrepreneurs or the start-ups they create were actually involved in its polling,” Tuttle said. “In fact, most of the thousands of inventors and entrepreneurs that I know do not view the AIA favorably, are not in favor of the current post grant processes, and are upset when costly issued patents they presumed were 100% valid may no longer be. It’s more like having a rug ripped out from under them.”

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Gene Quinn

Steve Brachmann is a writer located in Buffalo, New York. He has worked professionally as a freelancer for more than a decade. He has become a regular contributor to IPWatchdog.com, writing about technology, innovation and is the primary author of the Companies We Follow series. His work has been published by The Buffalo News, The Hamburg Sun, USAToday.com, Chron.com, Motley Fool and OpenLettersMonthly.com. Steve also provides website copy and documents for various business clients.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 31 Comments comments.

  1. Inventor Woes February 6, 2017 12:26 pm

    Impossible to believe doesn’t necessarily mean something is factually incorrect. That’s what they tried to crucify Galileo and Darwin for, let us remember.

  2. Invention Rights February 6, 2017 1:34 pm

    They surveyed mostly outside counsel. Of course 48% of those representing patent owners thought that IPR’s were beneficial – to their wallets! It appears that AIPLA represents the crony division of the Patent Bar. Their efforts are to promote patent disputes and make them super expensive to resolve. How long will their clients continue to take the bait?

  3. angry dude February 6, 2017 4:38 pm

    those morons do not represent small patent holders
    nobody represents us at present
    taxation without representation – that’s all it is

  4. Andrew Schulman February 6, 2017 4:47 pm

    Sorry, but while the headline is catchy, it isn’t supported by the article itself. The article shows that at least SOME patent owners are okay with IPRs and SOME of course are not. Is that any different from what the survey purported to show? No doubt the survey was skewed towards larger companies, but those companies are also patent owners. Many patent owners have somewhat contradictory interests, because they are also patent defendants. I don’t understand why IPWatchdog would want to over-simplify the competing interests, and the tensions in patent law. This is one of several IPWatchdog articles that recently have presented an unnecessarily one-sided view that at times seems to suggest that almost any post-grant invalidation of a patent is an attack on American inventors as a whole.

  5. angry dude February 6, 2017 4:59 pm

    Andrew Schulman @4

    Another shill for big infringer’s lobby ?

    Patents must be issued properly in the first place and presumed valid after that.

    Period.

  6. Gene Quinn February 6, 2017 5:08 pm

    Andrew Schulman-

    If you don’t think the article supports the headline you obviously need to reread the article.

    Clearly, the Bloomberg/AIPLA report is at a minimum misleading. They repeatedly use the term “patent owners” when only attorneys were surveyed. It is also wrong when it says that the criticisms of the PTAB have subsided, which they have not.

    You say that we provide a one-sided view, which is as interesting as it is ignorant. The post grant proceedings, as explained in this and many other articles, are completely one-sided in favor of the challenger despite the fact that the statute says a patent is presumed valid. I realize that you don’t like the truth, but that doesn’t make it any less true. Pretending that the PTAB is a fair and even jurisdiction is asinine.

    -Gene

  7. Inventor Woes February 6, 2017 5:28 pm

    “This is one of several IPWatchdog articles that recently have presented an unnecessarily one-sided view that at times seems to suggest that almost any post-grant invalidation of a patent is an attack on American inventors as a whole.”

    Couldn’t have said it any better myself. It’s like how the liberals won’t stop complaining even though the opposition won fair and square.

  8. Gene Quinn February 6, 2017 5:37 pm

    Inventor Woes-

    So now you are going to try and masquerade as a conservative that likes to take property rights away using a tribunal that fundamentally lacks any semblance of due process? What a joke.

    I find it interesting that neither you nor Andrew actually rebut anything I wrote. Instead you try and pretend it isn’t so by marginalizing me and IPWatchdog. Thank you for such a clear admission that you have no leg to stand on and no legitimate argument to make.

    -Gene

  9. Inventor Woes February 6, 2017 7:22 pm

    Gene-

    That’s exactly my point, you’re trying to play the identity politics card. The PTAB was a creation of the AIA, a law that was deliberated by Congress and signed by the president. Even SCOTUS has supported it in the recent decision upholding the validity standard used by the PTO. All three branches support it, thus how can you argue that it lacks any semblance of due process. If anything it was the exact opposite.

  10. Gene Quinn February 6, 2017 7:49 pm

    Inventor Woes-

    I’m playing identity politics? Wow! Alright then.

    I say the PTAB lacks any semblance of due process because it is 100% true and anyone even vaguely familiar with the law and PTAB process knows it to be true. Obviously you are not a lawyer, so I’ll take it easy on you. I’ll just point out what every lawyer knows to be true. First, whether Congress thinks they have provided sufficient due process is irrelevant. Second, whether the President thinks there is sufficient due process is irrelevant. Third, the Supreme Court has never been asked to look at whether the PTAB procedures are infirm from a due process standpoint. So far the Supreme Court has only been asked to look at one very narrow issue, which is whether the PTAB can apply the BRI standard or whether they need to apply the district court standard for claim construction. Of course, once Congress passes HR 5 (already passed by the House and expected to quickly pass in the Senate) even that Supreme Court ruling will be nullified and we will be back to ground zero.

    Furthermore, the Federal Circuit has said the PTAB acts in arbitrary and capricious ways, that the PTAB has been using a definition of CBM patent that is completely without any foundation in the law, and in Aqua Products the Federal Circuit will soon say that the PTAB has wrongly refused to allow for amendments to claims. So I don’t know what game you are playing, but obviously you aren’t paying attention. The PTAB is a disaster, they refuse to consider timely submitted evidence and every step of the way they lie about there being a 12 month time limit to complete their kangaroo proceedings, which there isn’t. So if you are going to lie about the PTAB you really should do it when conversing with someone who isn’t acquainted with the truth, like yourself.

  11. Andrew Schulman February 6, 2017 8:43 pm

    I am mystified by the reaction that my post produced. I don’t even have a fixed position on this subject, and was merely stating that the coverage here seems one-sided. In response, I get “Another shill for big infringer’s lobby?” and “I realize that you don’t like the truth”. For what it’s worth, at least half of my work in patent litigation has been for patent owners, against much larger defendants. All I can do is ask, what’s the point in calling out people as shills, liars, asinine, etc., in response to what was at least in my case (I can’t speak for “Inventor Woes”) a fairly mild criticism as to tone and balance.

  12. angry dude February 6, 2017 10:02 pm

    Andrew Schulman @11

    You never owned any tech patents in your life and never litigated important tech patents on behalf of small inventors or startups against large tech corporations.
    Otherwise you would never write such garbage

  13. Inventor Woes February 6, 2017 11:43 pm

    angry dude @12

    Sounds like the “no true scotsman” argument:

    Person A: “No Scotsman puts sugar on his porridge.”
    Person B: “But my uncle Angus likes sugar with his porridge.”
    Person A: “Ah yes, but no true Scotsman puts sugar on his porridge.”

  14. Greg DeLassus February 7, 2017 12:13 am

    “[S]everal IPWatchdog articles that recently have presented an unnecessarily one-sided view that at times seems to suggest that almost any post-grant invalidation of a patent is an attack on American inventors as a whole.”

    I can sympathize with the view that AIA trials are painted *too* black around here. I think that IPRs bring both harm and good to the patent system, but more good than harm overall.

    “The article shows that at least SOME patent owners are okay with IPRs and SOME of course are not. Is that any different from what the survey purported to show?”

    This, however, strikes me as willfully obtuse. I agree that there are good arguments to be made for IPRs, but the AIPLA survey is not one of these good arguments. This is junk. There is not even a pretense made of having achieved a representative survey sample. To respond to this by saying “SOME patent owners are okay with IPRs and SOME of course are not” strikes me as willfully obtuse. That is not the message that the AIPLA was trying to convey to its readers, when it ran the headline “Patent Owners, Petitioners Not Far Apart.” Clearly they mean to indicate something about the *average* patent owner, not merely that there exists more than two patent owners who like IPRs.

    This is a junk survey. It deserves all the scorn that the admin here are heaping on it.

  15. Eric Berend February 7, 2017 7:22 am

    So: it becomes rather obvious that paid antagonists such as “Inventor Woes” and “Andrew Schulman” are now assigned by their ‘position handlers’, to monitor IPWatchdog’s articles and to try to muddy the waters with misleading, snarky, disingenuous commentary without revealing their mendacious motivations or sponsors.

    With such relish, does “Inventor Woes” needle and provoke at the actual real-world inventors reading or posting comments here. With such jaunty assurance does the “Andrew Schulman” pretend to have relevance for true inventors while parroting the preferences of the infringers’ cabal.

    In politics, it’s known as “talking past” one’s opponent, providing a pretense of supposed discourse, rather than the veiled contempt, that it truly is. I would hereby request that “Inventor Woes”, in particular, be banned from this forum: he or she does nothing to contribute positively to the discussions here; and an uniformed reader might be deceived as to the truth of a particular issue or the overall anti-inventor milieu.

  16. angry dude February 7, 2017 9:41 am

    Eric Berend @15

    Me thinks “Inventor Woes” might be a useless academic type – a small clone of Mark Lemley maybe ?
    To me they are all trolls not worthy of talking to
    Don’t feed the troll

  17. angry dude February 7, 2017 9:53 am

    Greg DeLassus @14

    Another garbage: “*average* patent owner”

    Like Google has 50,000 patents and 12 figure profits and I have 1 patent and 6 figure profits, but *on average* we have roughly 25,000 patents and 11 figure profits each…

    Dude, on which planet do you live or you are just another troll ?

  18. Gene Quinn February 7, 2017 10:22 am

    Andrew Schulman-

    You say: “I don’t even have a fixed position on this subject…”

    If that is the case I will apologize for my comments going at you hard. But what elicited a belief that you do have a very specific position is you were defending the misleading Bloomberg AIPLA study by pointing out that the giant companies that engage in an elaborate scheme of efficient infringement are patent owners too, so that means Bloomber AIPLA accurately characterized the results. If that is what you believe then you are wrong, and you do absolutely have a fixed position. Over and over and over again the report says “patent owners” and this report and survey will be misused to say that half of all patent owners agree the PTAB is fair and beneficial. That is not true, period. They selectively surveyed a small segment that would give them that absurd answer and then buried the details in a footnote, but over and over again used the generic term “patent owners” as if it is all patent owners. It wasn’t even the owners, it was the attorneys. Of course the attorneys like IPR for the money they make. But further still, there is no acknowledgement anywhere in the report that those “patent owners” that find IPR beneficial are those that are among the companies that wanted them in the first place to weaken the patent system. So where exactly is the balance in the survey? It is extraordinarily misleading (and that is being generous).

    You say: “a fairly mild criticism as to tone and balance.”

    The other thing that elicited such a response was saying that this characterization of the PTAB, which is 100% factual and backed up by citation over and over again, was one-sided. The PTAB itself is one-sided. So what you are noticing is just how unfair the PTAB is to patent owners and how fundamentally unfair the processes are. So if you have issues with the one-sided nature of the description you absolutely must have very serious issues with the PTAB. However, your comment only took issue with my characterization of the facts, not the facts themselves. Why?

    And if you do not like the balance, what in the article is incorrect? Nothing.

  19. Inventor Woes February 7, 2017 1:35 pm

    Eric Berend @15

    Real nice, attempting to silence people because of what they have to say. The founding fathers would be real proud.

  20. Eric Berend February 8, 2017 6:11 am

    @ 19: “Inventor Woes” –

    You – YOU, dare have the temerity to invoke the Founding Fathers amid the current special interest induced, artificial tumult which has invoked an anti-inventor infringer-friendly un-Constitutional gauntlet, that makes a mockery of the supposedly “…Secure…” right, specifically enumerated in Article 8?

    State your purpose here or begone, gadfly ‘troll’. What do you do to add anything positive to the discussion here? Wouldn’t your invention-thief friendly attitude find a better and more apropos presence in blogs of the opposite camp?

    Those who worked actively against the interests of the United States were not guaranteed nor assured so-called “free speech” in writings of the Founding Fathers, in doing so. The moral turpitude that is at least implied consistently by your comments, relative to the principles of the invention patent domain, is the ethical equivalent of shouting “fire” in a theater when none exists.

    As such, I hereby rebut and reject your protest of my supposedly unfair treatment or regard of you here, as merely hypocritical and disingenuous.

  21. Night Writer February 8, 2017 1:53 pm

    Like IPRs? If you have a patent, then an IPR is certainly against your interest and no one would like an IPR in respect to their patent. Many people might like IPRs if they are more worried about having patents asserted against them than asserting their patents.

    But–seriously–no one with a patent would “like” IPRs in relation to that patent. It means you can be endless IPR’ed at the USPTO by people without standing. To say anyone likes that in regard to their patent is absurd.

  22. Inventor Woes February 8, 2017 2:04 pm

    I believe you have to be an interested party to institute an IPR. There is some amount of standing required. It’s almost like the equivalent of a declaratory judgment.

  23. Inventor Woes February 8, 2017 2:10 pm

    Scratch that, you don’t have to be an interested party. Anyone can file an IPR (37 CFR §42.101). I guess the theory is that anyone in the public has standing because of the potential chilling effect of a potential lawsuit should one decide to enter into the realm that the patent claims to cover.

  24. Gene Quinn February 8, 2017 4:14 pm

    Inventor Woes-

    You say: “I believe you have to be an interested party to institute an IPR. There is some amount of standing required. It’s almost like the equivalent of a declaratory judgment.”

    Incorrect. There is no standing requirement to file an IPR. There is a standing requirement for CBM, but not for IPR or PGR.

  25. Inventor Woes February 8, 2017 9:57 pm

    Gene-

    Yeah I realized that, which is why I put the correction @23. My bad.

  26. Inventor Dude February 10, 2017 3:32 pm

    The fact that patents were pressumed valid predicated this situation….how stupid is that! Rely completely on examiner to get it 100% right 100% of the time and for the attorney to draft good quality claims. No wonder Trolls exist in the US.

    Oh, and Gene, I worry for your health – please calm down and stop publishing such biased clap-trap…before you do yourself serious harm. I like you, but this stance you’re taking is so old hat. Take care, dude!

  27. Mark S. Graham, Esq. February 11, 2017 12:58 pm

    This is a good debate. I wish I had gotten into it much sooner.

    The jurisprudential design of IPR proceedings is fatally flawed. So when the PTAB invalidates patents in IPR proceedings that should not be invalidated, it is probably doing its job.

    In other words, we should expect what the PTAB is doing to issued US patents to look stupid because it is stupid. It should be no surprise for us to see the PTAB invalidate patents that should not be found invalid at an alarmingly high rate in these IPR proceedings. Their claims are attacked without the protective shield of the “statutory” presumption of validity, and with an artificially broadened scope based on an ill-advised “broadest reasonable construction” standard that is bound to cause them to ensnare more prior art than they would across the street in a US District Court.

    How could a thinking person not see the absurdity of what the PTAB is allowed to do to issued US patents in IPR proceedings? The self-inflicted wounds being inflicted on our patent system by the PTAB are being applied to some of our Country’s most commercially important patents, and in a way that circumvents the carefully developed adjudicatory balance afforded to patent grants that issue from rigorous substantive examination by the USPTO.

    The IPR design is one step closer to a patent “registration system.” We must stop and reverse this trend. Otherwise, the amazingly successful spirit of innovation and entrepreneurship that put the United States at the lead of the pack will be eroded and forever lost.

    Unless we want to become France, we had better wake up and get busy fixing our patent system! The fix must be focused on the root cause of the problem.

    Like the Trademark Office, all Patent Examiners should be lawyers trained in patent law and in the technologies in which they work. That is the ONLY way we are going to begin to rectify the problems with our patent system.

  28. Gene Quinn February 12, 2017 3:22 pm

    Inventor Dude @ 26-

    Thanks for saying you like me, appreciate it. I’d like you more if you weren’t a coward. Hiding behind a fake name and a fake e-mail and pretending to be an inventor is really quite spineless.

    As for the substance of your comment (to the extent there was any)… you seem to claim the presumption of validity is stupid and is obviously the cause of trolls. What is stupid, however, is that you seem uninformed that the presumption of validity is at least several generations old and the phenomena of patent trolls (as small a problem as they are) dates back about a decade. So if the presumption of validity is so stupid you will have to enlighten us all on why trolls never existed for 85% (or more) of the time we have had the presumption of validity.

    Moving forward, please don’t pose as an inventor when you are obviously a shill for the infringer lobby.

    -Gene

  29. Anon February 13, 2017 7:31 am

    Gene,

    It might be time to tighten the screen on posts here. Fake names is one thing (as I have expounded on in the past). Fake email addresses are quite another. Since the emails addresses are not published, they solely serve a quality function. Time, I think, to give that function some teeth.

    Several threads now appear to be plagued with obvious non-inventors “posing” as inventors to take a rather ludicrous stance. Whether or not this is a single actor (indicators are that it is), matters less than the fact that this action is only accomplished through the fake email path.

    May I suggest: email is fake? post deleted.

  30. Mark S. Graham, Esq. February 13, 2017 10:53 am

    Gene, your publication is super! I look forward to reading every new article, as well as the many genuine, thoughtfully composed posts!

    I agree with those who suggest you may want to objectively winnow out the masked demagogues. Anyone wishing to make a meaningful contribution to a discussion prompted by an IPW article should be willing to stand up and be counted.

    Keep up the great work!

  31. David Petite March 3, 2017 10:07 am

    More fake news, I am so tired of slanted news I could scream! My patents have been through numerous IPRs and I can tell you not many independent inventors can survive the IPR storms, the lowest cost to go thru an IPR for 1 patent is close to $250K and thats on the cheap side, which is over 11 times what it cost to get a average patent issued. The IPR process has got to be amended or its going to be the death of innovation for this country.