As Senior Counsel of the House Judiciary Committee, Vishal Amin was a primary architect of the Patent Trial and Appeal Board (PTAB), the administrative tribunal that has destroyed thousands of patents, destabilized the U.S. patent system, and sent venture capital and countless technology startups fleeing to China.
Inventors who create jobs by using U.S. patents to bring new ideas to existing companies, or to start their own are all suffering from the U.S. Patent and Trademark Office (USPTO) implementation of the PTAB created under the America Invents Act (AIA). Vishal Amin was a primary architect of the AIA. But now President Trump has nominated Mr. Amin to serve as White House Intellectual Property Enforcement Coordinator, sometimes referred to as the “IP Czar”. The Senate must consider the effects of the AIA in Mr. Amin’s confirmation process.
In the AIA, Congress granted the USPTO broad power in the PTAB to weed out those few patents that were granted but perhaps should not have been. However, largely due to the PTAB, the U.S. patent system now ranks 10th in the world, tied with Hungary.
The PTAB invalidates at least one claim in more than 95% of patents it reviews. Claims are selected for review by the petitioner, who is almost always the accused infringer or some company acting in their place to hide the identity of the true petitioner. Invalidating just one claim can destroy the case for infringement and thus the patent. The cost of defending a single PTAB starts at $500,000 and burns many years of the patent’s life when you factor in the administrative process and inevitable appeal. That lost time does not come back, so it really destroys the heart of the patent’s enforceable life— that limited time when the technology will be most commercially valuable and viable. Big corporations “gang tackle” inventors by filing multiple PTABs against the same patent, thus driving the cost of defending a patent into the millions of dollars. PTAB is obscenely unfair and damaging far beyond the patent’s value.
PTAB damages capitalization of our most important new technology startups – those with innovative new technologies that must be protected by patents. These are the very companies that have historically created most of our new jobs.
While we weaken our patent system, China strengthens its patent system. China is now the global leader in patent filings with twice as many filed than the United States in 2015 and more than the top 20 countries combined. This is causing venture capital that once propelled startups here to move to China. Along with funding goes job creation and economic growth, but more importantly, the leading position in new technology creation on the world stage also goes. The loss of leading in technology will have a dramatic effect on our national security and we will be forced to purchase technology critical to our national infrastructure and potentially military from China.
Changing PTAB rules may help for a while, but cannot fix the PTAB’s systemic problems because PTAB rules will change with every new administration. While a patent’s term is 20 years, PTAB rules will likely change every four years. This leaves the patent system perpetually unstable and as such unable to drive economic growth and job creation because patents will never be able to attract investment for early stage startups.
Not surprisingly, the PTAB is the most used patent litigation venue. Far more than even the Eastern District of Texas. The PTAB, an administrative tribunal, invalidates property rights without a jury and under completely different rules than an Article III court (see PPC Broadband, Inc. v. Corning Optical Communications), which puts the PTAB in conflict with 220 years of black letter law, precedent and the U.S. Constitution.
Vishal Amin was an architect and the primary driver behind the AIA and the PTAB. He must explain his reasoning for the most damaging legislation to American innovation in U.S. history.
These questions must be asked of Vishal Amin in his confirmation hearings. Unless he can reasonably and satisfactorily explain his position on these issues, it must be assumed he is not qualified for the position of White House Intellectual Property Enforcement Coordinator.
|The Issues||Inventors||Vishal Amin|
|May private property be taken by an Article I administrative tribunal?||NO||?|
|Is an issued patent a private property right?||YES||?|
|Is a patent owner entitled to due process under the 5th amendment?||YES||?|
|Do PTAB rules provide due process for the patent owner?||NO||?|
|Is a patent owner entitled to a trial by jury under the 7th amendment?||YES||?|
|Can the USPTO “fix” patents after issuance without harming the integrity of the patent system?||NO||?|
|Is the PTAB inconsistent with the presumption of validity in §282 of the Patent Act?||YES||?|
|Should Article III courts be bound by PTAB decisions as to validity of issued patents?||NO||?|
|In light of PTAB, are patents securing to Inventors the exclusive Right to their Discoveries?||NO||?|