The PTAB’s dramatic effect on patent value and corresponding disincentives to capital allocation

By Ashley Keller
September 15, 2017

Running towards a carrot tied to a Pinocchio nose, falling off a cliffThis week marks the sixth anniversary of the Leahy-Smith America Invents Act, and thus the fifth anniversary of that statute’s most debated creation: the Patent Trial and Appeal Board. Whether one celebrates or decries the PTAB, there can be little doubt that it has worked a profound effect on the value of American patents—and, concomitantly, on incentives to invest in research and development. As a Managing Director at Burford Capital, I lead a team that evaluates opportunities to monetize patent assets, often through litigation. In conducting our analysis, we are tasked not with making normative judgments about how the PTAB performs its work (though I obviously have an opinion on that score), but instead with assessing how the Board affects the probability and size of any prospective litigation or licensing recovery. With that perspective in view, I offer three observations as the PTAB turns five.

First, the statistics now conclusively establish what many observers initially noted: The PTAB invalidates patent claims at a far higher rate than Article III tribunals (district courts and the Federal Circuit) in parallel proceedings.  Several supplemental thoughts flow from this difference.

For one thing, I do not attribute the difference in invalidation rates to the competing renditions of the burden of proof (clear and convincing evidence in court, preponderance of the evidence in the PTAB) or the alternative ways to construe claims (Phillips in court, broadest reasonable interpretation in the PTAB). Those different standards are mere makeweights, tipping the scales only in the most marginal circumstances. From the hundreds of cases I have observed, the more cogent explanation for the statistics is personnel: Compared to their judicial counterparts, PTAB judges are biased in favor of invalidity. Personnel differences also explain a more disturbing phenomenon, mainly, that the Patent and Trademark Office seems to be at war with itself. Frequently, the PTAB invalidates claims based on prior art that examiners considered during initial prosecution. The only explanation for such discordant outcomes is that PTO examiners take a more pro-patent view of validity than the judges who make up the PTAB.

Second, the PTAB’s bias in favor of invalidity seems wrapped within a more general bias in favor of parties challenging patent claims. Ambiguities in the AIA are almost universally construed against the patentee, and the PTAB takes a capacious view of its statutory authority. For instance, Federal Circuit Judges Dyk and Wallach recently raised “serious questions” about the PTAB’s practice of allowing an otherwise time-barred petitioner not only to join an IPR, but also to raise new grounds not contained in the instituted petition. In a similar vein, the PTAB has embraced a very wide (and largely unreviewable) definition of “a financial product or service,” allowing a host of claims to fall within the ambit of a “Covered Business Method Patent.” That, of course, is significant, as CBMs are subject to additional invalidity grounds—including under Section 101—that are not available in petitions for inter partes review.

Third, district courts largely have determined that interests of efficiency and judicial economy favor deferring to the PTAB once a decision to institute a proceeding has been made. Most parallel proceedings in district court are stayed once an IPR or CBM is instituted. The upshot is that the supposed savings in time and litigation costs that were heralded by proponents of the AIA have not materialized. Patent cases are filed in district court; defendants typically wait close to a year to file IPRs; institution decisions issue six months later; and final written decisions follow another six to 12 months after that. As a result, litigants bear 12-18 months of litigation expenses, followed by a year or more of costs at the PTAB, with litigation (or appeals) proceeding thereafter depending on how the PTAB rules. Not exactly the hoped for picture of efficiency or economy.

Taken together, these observations have produced predictable results. The value of a patent is the expected value it will produce in litigation, discounted to the present based on the time it will take to extract a judgment (or judgments). By definition, when the expected value of litigation goes down and the time to final judgment goes up, the asset is less valuable. Moreover, the PTAB has placed a heavy enough thumb on the scales that accused infringers almost always will pursue PTAB proceedings before considering settlement options. As a result, patent litigation today is more of a binary bet, as opposed to one where parties can reach reasonable settlements at various points during the life cycle of a case. That is not to say that no cases settle. Some do. But on the margin, the trend is to gear up for a fight that will go the proverbial distance—increasing the expected cost of litigation, extending the time to money, and raising the price of investor capital.

A related consequence of the point just made is that investors must focus on the rare class of path-marking innovations (where validity is less of a question) that nevertheless have been adopted quickly enough to support a substantial volume of infringement and thus an asymmetric return. Such patents do of course exist. But the far greater class of inventions that marginally improve over the prior art are essentially un-investable. The risk-reward associated with pursuing infringers of those claims will almost always steer capital away.

If one believes that most patents are low quality, that marginal patents deserve little to no return (and thus that the innovation behind them should not be pursued), that patents were previously overvalued, or that lower costs for goods and services today are worth trading a slower embrace of what otherwise would be tomorrow’s R&D-driven innovation, then the PTAB’s fifth birthday is a milestone to celebrate. But I suspect Congress did not hold these beliefs when it enacted the AIA and does not hold them now.  Any assessment of the Act should confront head-on its dramatic effect on the value of intellectual property assets and the corresponding incentives (or disincentives) to allocate capital to innovation.

The Author

Ashley Keller

Ashley Keller is a Managing Director at Burford Capital, a litigation finance company. He co-founded Gerchen Keller Capital and as Managing Director helped steer its growth to $1.3 billion in assets under management prior to its acquisition by Burford. Before co-founding Gerchen Keller, Mr. Keller was a partner at Bartlit Beck Herman Palenchar & Scott LLP, The American Lawyer’s litigation boutique of the year, where he handled various trial and appellate matters involving multi-billion-dollar securities and patent cases, contractual disputes and mass-tort class actions.

Mr. Keller has also worked as an analyst at Alyeska Investment Group, a Chicago-based market neutral hedge fund, where he focused on investments in companies facing litigation and other complicated regulatory matters.

For more information or to reach out to Mr. Keller, please visit his firm webpage.

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 28 Comments comments. Join the discussion.

  1. Night Writer September 15, 2017 12:22 pm

    I think that big corporations are going to cut back on patents big time in the next recessions. Next belt tightening and patents are going to go on the chopping block.

  2. Invention Rights September 15, 2017 12:25 pm

    Today there is not single patent family worth more than the cost to enforce it to a final judgment against a resolute infringer. Let that sink in.

  3. CP in DC September 16, 2017 9:44 am

    Pharma patents fair well at IPRs, better than other technologies. Pharma patents are worth more than the cost to enforce. For instance, look at Allergan Restasis patents making 1.3 billion a year.

    High tech is not the only player in this game and I wish more authors would consider pharma in their analysis. Private investors participate in pharma as well, Par Pharma is own by private equity.

    Again, the problem is with IPRs so lets focus our arguments on either abolishment or reformation.

  4. Anon September 16, 2017 10:44 am

    Again, CP in DC, the problem is not with IPRs, but instead the problem is with the legislation behind the IPRs at a fundamental level.

  5. Mathias September 16, 2017 11:17 am

    The view that PTAB judges are biased in favor of invalidity is not in accord with what I see in our daily patent prosecution practice in the US. We regularly need to appeal to the PTAB to overturn obviousness rejections based on inadequate application of patent law by patent examiners (e.g. random and unreasonable combination and interpretation of the prior art). In my experience, the PTAB is fairly and reasonably pro applicant, provided that his invention indeed and de facto meets the patentability requirements.

    I also disagree with the view that the value of a patent is the expected value it will produce in litigation. In the perception of an NPE, attempting to extract value from IP exploitation/enforcement, the calculation may be correct, but it does definitely not hold true for practicing entities whose patent portfolio primarily serves the purpose of value creation. At least in the pharma/biotech/medtech space, the mere presence of a reasonably solid patent that thwarts or at least heavily complicates entry to a highly profitable market has a value which is difficult if not impossible to quantify. There are many critical factors/parameters which influence this value (R&D detours, compromised clinical and/or regulatory strategies, delays in time to market, legal costs spent on evaluating and challenging the validity of IP etc.) and I am quite convinced that it is in many cases much higher than what you would get out from litigation.

  6. Anon September 16, 2017 1:23 pm

    Yes, the PTAB invalidates pharma patents less frequently than other inventions. But the cancellation rate for pharma patents is still higher than in district court. So the main point that patents (including pharma patents) are less valuable than before still seems right.

  7. Paul F. Morgan September 16, 2017 1:31 pm

    There is no doubt that IPRs have dramatically reduced profits for such patent litigation investment companies, because only a very small percentage of patents sued on ever got to a final validity or invalidity decision via litigation. Almost all defendants previously simply paid to escape large discovery and other litigation costs. But I have yet to see, after five years of IPRs now, any actual statistical support for assertions like this one here: “Frequently, the PTAB invalidates claims based on prior art that examiners considered during initial prosecution.” Why is that even logically likely, since at least 80% of IPR petitioners are defendants being sued for patent infringement – thus highly motivated to spend large amounts of money for orders of magnitude more extensive prior art searches than the few hours than the ex parte application examiners did for the subject patents? Furthermore, requesting an IPR based on prior art already of record is far less likely to succeed. Furthermore, IPRs are still only filed in a minority of patent suits, typically where much better prior art was missed in the few hours available for ex parte examiner application prior art searches. If the PTAB APJs were actually widely rejecting claims by second-guessing ex parte examiner decisions on the same prior art, they would not be being so consistently sustained on appeals by the Fed. Cir.

  8. CP in DC September 16, 2017 2:21 pm

    Anon

    I wish you would point out the statutes that are the problem. IPRs are statutorily established. Now the problem can be fundamental in the statute, its implementation at the PTO, or both. I have no problem, but the response misses my point.

    Authors continuously say the problem is the PTAB when they mean that IPRs are the problem. You say the problem are the statutes. No one is speaking to the same topic and everyone is missing the point. That’s my issue. How you word it whether IPR or statute, is of no concern to me, just get on the same page and start addressing the issues at a productive level.

    I just want productive discussions that can be of help in noting the shortcomings of IPRs or statutes establishing the IPRs. If it’s an issue with proffering evidence, actually amending the claims (we already know this rarely happens), the hearings, the institution or the lack of review for institution (a problem), then lets speak of those topics.

    What I don’t find helpful are the numerous comments about the PTAB is a kangaroo court. Ok, got it, now how to fix it. Everyone rather spend their time hurling insults but never having a substantive discussion. The denigrating remarks won’t change the PTAB, IPRs, or the statutes establishing IPRs. That’s my point.

  9. Anon September 16, 2017 2:34 pm

    I have no problem, but the response misses my point.

    The point that you miss is that any “correction” in application does not address the fundamental problem in the legislative aspects.

    The point is that YOUR point is superfluous.

    I have spoken long and consistently on the my point. The points that you want to speak of – again – are superfluous. EVEN IF you could agreement on which of those points to talk about, and EVEN IF after getting agreement to talk about those points and EVEN IF a consensus on whether or not those points are indeed issues, you STILL remain with a fundamentally flawed legislative approach.

    Fixing the kangaroo court without recognizing WHY it is a kangaroo court is not only doubtful to be accomplished, it is a waste of effort – IF the fundamentals are not themselves taken care of.

    If it is any consolation though, I think that your comments are acting as if they are a lightning rod, and that some of the animus that you are receiving is rather unjustified.

  10. Paul F. Morgan September 16, 2017 2:48 pm

    CP in DC, thank you for the rare realistic comments on this subject.
    Also, as noted above, attacking IPRs with statistically unsupported statistical allegations that could easily be statistically disproved also detracts from the credibility of any effort to get Congress to remove or change IPRs. Alleging that patent applications filings are going to go way down is another, since it has yet to happen after several years now since the AIA was enacted. Constructive doable specific improvements in IPRs, especially rule changes, could be successful if well supported, but are rarely suggested here.

  11. CP in DC September 16, 2017 3:09 pm

    Anon @ 7

    The point that you miss is that any “correction” in application does not address the fundamental problem in the legislative aspects.

    Ok, what aspects.

    I have spoken long and consistently on the my point.

    So it should not be difficult to explain them.

    Fixing the kangaroo court without recognizing WHY it is a kangaroo court is not only doubtful to be accomplished, it is a waste of effort – IF the fundamentals are not themselves taken car

    It’s going to change with or without your input. Your choice. I’d rather see more discussion about the fix, because unless the Supreme Court abolishes the IPR practice in Oil States, the same problems will persist. Input from actual practitioners or inventors has been rare.

    I participate at conferences about reforming 101 patent eligibility, because some believe that rewriting the statute will fix the current problems. However, the same discussion regarding IPRs or the statutes establishing IPRs is not taking place. Why? Judge Michel advocates reform and others do as well.

    If the PTAB is a kangaroo court, then the BPAI should have also been a kangaroo court given that they were established in the same manner, have same or similar duties, and have many of the same judges. But no one spoke about the BPAI as a kangaroo court, again why?

    I was hesitant to participate in blog discussions especially given what happens at the other IP blog. The comments were mostly insults and little if any helpful discussion. I decided to participate here, because the comments are mostly from the high tech view and often ignore pharma’s concerns.

    Pharma wants long strong patents with patent term adjustment and patent term extension at the FDA because profits are made at the end term of the patent. This desire is aligned with those who want change at the IPR, PTAB, or whatever you wish to call it. So why not hear pharma out?

  12. Paul F. Morgan September 16, 2017 6:24 pm

    CP in DC at 9, pharma patents have a vastly better track record in IPRs than others – especially broad software related patents. Also, if IPRs were truely kangaroo courts they would not have such a very low Fed. Cir. reversal rate for lack of due process, lack of evidence, etc.
    I could not agree more with your call for specific improvements.

  13. Anon September 16, 2017 8:01 pm

    CP in DC,

    The principal aspect is the property right and the host of other Constitutional protections once a property status has been obtained.

    It’s going to change with or without your input – a fallacious choice. It may indeed change far more than what you are considering, and my voice is certainly already in the mix.

    As to whether or not the BPAI must also be considered a kangaroo court or not really is not at point (but if push comes to shove, the PTAB can readily be distinguished from the BPAI – fyi, not established in the same manner (or degree), not the same duties (and the similarities had different safeguards), and the ‘many of the same judges’ is a mere historical artifact, so I would put no credence into that similarity).

    I am interested though in why you think that a pharma view should be any different than a high tech view. I am also curious as to your take on the attempts by pharma to place their art unit outside of PGRs. Quite often, the notion of “divide and conquer” is attempted to split pharma from other art units (and you noted one reason: the value of the patent grant is at the reverse end of the protected time zone).

  14. CP in DC September 17, 2017 5:44 am

    Anon

    Oil States will decide the property right. But if we look at the problem from a historical perspective, reexamination, ex parte reexamination, or interference practice could render invalid and remove an issued patent. These proceedings took place before the BPAI, an Article I administrative court. So why wasn’t the argument made there? Inter partes reexamination had statistics similar to IPR. Yet no one argued the unconstitutional actions of the PTO when it rejected previously issued claims (reexam) or granted an application priority status over a granted patent (such happened in interferences). It was the same agency, the outcomes were identical, and yet no one made the arguments we hear today.

    If you are involved in the dialog, then extended it to the blog discussion. I welcome the conversation. Right now, a mob mentality has taken over blog discussion resulting in an echo chamber that is not listening or thinking about any else but abolishment (PTAB or IPR).

    BPAI did interferences, PTAB does derivation proceedings. BPAI did ex parte appeals, PTAB does ex parte appeals. BPAI did inter partes reexamination, PTAB does IPRs (I get it, not the same but similar). Yes the PTO hired many judges to address the IPRs, but it does not mean that all BPAI judges immediately took retirement. So the PTAB is not composed solely of new inexperienced judges. I get the PTAB is not perfect, just look at the recent Fed Cir cases criticizing the PTAB for failing to conduct proper analysis, ignoring contrary evidence (the untimely evidence because it came about in district court litigation) and so on, but maybe we can change their course, by changing legislation, CFR rules, or providing valid criticism without name calling.

    I don’t believe pharma should be viewed differently. I believe they should have a voice in the blog discussion. In fact, the goals of pharma (long patent term, strong unchallengeable patents, proper examination, etc.) are aligned with those seeking IPR (and examination) reform. Pharma patents get challenged by deep pockets. Generics now enter IPRs when ANDA litigation is filed, it took them a while but they figured it out. Litigation to extend patent term both by patent term adjustment and patent term extension was initiated (more than once) by pharma. There are common goals with those wanting strong high tech patents that never get IPR instituted and discourage potential infringers. I understand the efficient infringer lobby (and their wealth), but don’t agree with what they want.

    I want PGRs because a compound patent is virtually impossible to render invalid, despite having claims that run pages long. Method of treatment claims encompass so many diseases and often provide little data. Some claims are based on speculation, unreasonable extrapolation of data, and prophetic examples. Take the Mayo case, it could not be challenged under IPR (102 or 103 only), but could under PGR (112 is important here), yet this case had to go to the Supreme Court (on eligibility). Pharma has many of these patents that cover so much and proffer so little. Description, enablement, and indefiniteness are problems in pharma that IPRs cannot address but PGR can do so.

    We should have an open discussion with different views (this includes articles on blogs). I don’t see these different views in the blog articles (and comments). I see the name calling, the personal attacks that don’t address the issues, and I see the “I know what you are but what am I” responses that can run too long.

    If we know “they” want to divide and conquer, then let us not fall into the trap. Join the substantive discussion.

  15. CP in DC September 17, 2017 5:58 am

    Paul F. Morgan

    Thank you for your comments. I would like to see if rule changes could address some problems before we send the legislation back to Congress for a fix. I believe practitioners have a better view and idea of the problems. And I know both practitioners and inventors have been left out of the discussion.

    In the future, I will use italics to indicate quotes by others. I haven’t done so and I believe it has led to confusion.

  16. Name withheld to protect the innocent September 17, 2017 7:53 am

    We regularly need to appeal to the PTAB to overturn obviousness rejections based on inadequate application of patent law by patent examiners (e.g. random and unreasonable combination and interpretation of the prior art). In my experience, the PTAB is fairly and reasonably pro applicant, provided that his invention indeed and de facto meets the patentability requirements.
    LOL … that may have been true 15 years ago, but today’s Board is still very anti-patent. There are some APJs (particularly those who cut their teeth in the Dudas era) who will go to great lengths to mangle the law and the facts. There are some APJs I’m aware of who have a penchant for recycling form paragraphs that essentially say “I agree with the Examiner’s findings … Examiner affirmed.”

    The affirmance rates today are much higher than they were 15 years ago with no adequate explanations as to why.

  17. Anon September 17, 2017 9:38 am

    Cp In DC,

    You attempt to still; equate the two.

    That is plain legal error.

  18. Anon September 17, 2017 9:40 am

    Further, CP in DC, your call (to me) for joining the substantive discussion is most odd.

    I suggest that you familiarize yourself with my writings, as I have been a part of the substantive discussion for a number of years now.

  19. Anon September 17, 2017 10:01 am

    Having said that – I DO agree with you that a certain sense of “mob mentality” has been obtained in calls to fully and completely remove the PTAB from the system that come without a detailed view of the fact that some (even similar) functions that existed prior to the BPAI being changed into the PTAB may not only “want” to be continued, but that may “need” to be continued.

    Congress – not the Office – indeed has made a supremely royal [sic] mess of things, and especially (as has been discussed in the past, although I personally can no longer make the assertion without additional legwork of my own) if the AIA rises and falls as a single block of statutory change. Other ongoing responsibilities have prevented my (a polite way of saying that I have just not made it a priority) of finding the details of the record in which an amendment to provide separability of provisions within the AIA was raised and decided against. If in fact Congress actively discussed and rejected such a savings device, then an adverse decision in Oil States will have effects far broader than nearly anyone (excepting myself) have even contemplated.

    But even putting that potential unraveling to the side, the view to what happens in Oil States – as an impact to THIS issue – is in truth not something that can (or should) be separably discussed. The impact of THAT case can fully change ANY discussion on “what to do” with IPRs.

    I disagree on any attempts to say the similarities are strong enough to be “the same,” and will note that in the past a full recourse with de novo fact presentations as an alternative existed apart from the current PTAB structure.

    To the extent thought that there may be similarities that are NOW being challenged on Constitutionally infirm grounds, I also reject the blanket argument of “no one objected in the past.”

    That’s not a “valid” argument. Look at the Tam case (for example). Just because no one before Tam successfully made the point about the trademark law being Constitutionally infirm does NOT make the law “firm” prior to Tam. It only means that such was not challenged. Do not mistake a lack of challenge as some imprimatur of LACK of infirmity.

    And yes, much of this DOES reflect on the issue that MAY be decided in the Oil States case.

    I have even attempted to prompt a discussion on the merits of what happens (hypothetically at this point) if the Court deigns patents to NOT be property rights, but to be public rights instead.

    Not many takers there – even though the necessary side effects would indeed be massive and far reaching (exhaustion, for example, requires patent rights to be viewed as property with rights that can be exhausted).

    You may be new to the patent blogging world and may have a lot of catching up to do. The past few years of substantive discussion will NOT be repeated in each new thread as the items before us unfold. Before you call out ANYONE, please make sure that you understand that.

  20. Anon September 17, 2017 11:35 am

    One additional thought, CP inDC:

    I want PGRs because a compound patent is virtually impossible to render invalid, despite having claims that run pages long

    Contrast with:

    If we know “they” want to divide and conquer, then let us not fall into the trap. Join the substantive discussion.

    You do realize that the thing that you want – extremely detailed “picture claims” is exactly what is being used as a line for that “divide and conquer” that you want others to NOT fall into a trap about?

    It appears that you already are in the trap with what you may prefer (and thus may not prefer) based upon the types of art fields with which you are accustomed to.

    I have had plenty of conversations with people who thought themselves “not trapped” and who were very much trapped because of their pharma-world view on patents.

    The plain truth of the matter is that such “picture-claim” style of patents pretty much have zero value outside of the molecule world of pharma, and to attempt to use the pharma model as somehow (even remotely) a baseline for proper reward with patents is simply NOT workable.

    “Well-meaning” pharma patent attorneys thus may be providing more harm than good when it comes to discussions of the larger patent system.

  21. curoius September 18, 2017 6:43 pm

    Re: Mathias regarding the biases of PTAB judges – the PTAB judges are generally divided into two groups: (1) judges doing ex parte appeal work, and (2) judges doing AIA (IPR, CBM) work. There is very little overlap. Most of the recent hiring spree has been for IPR work, and most of the hires come from the mid-upper ranks of associates at big law firms. Contrast that with the judges doing ex parte work, a large portion of which came from the examining corps over the past 20 years. It is almost as though there are two classes of APJs at the PTAB.

  22. Night Writer September 19, 2017 4:52 am

    >>PTAB is fairly and reasonably pro applicant, provided that his invention indeed and de facto meets the patentability requirements.

    Mattias: they are talking about the trial portion not the ex parte portion.

  23. Night Writer September 19, 2017 4:55 am

    CP in DC >The point that you miss is that any “correction” in application does not address the fundamental problem in the legislative aspects.

    CP the problems with the legislation have been stated many times. You should address the problems that have been repeated over and over again.

    And, as I have said, everyone that actually worked in patent law knew that IPRs were going to greatly devalue patents before the AIA was passed.

  24. Night Writer September 19, 2017 5:05 am

    CP in DC>>> We should have an open discussion with different views (this includes articles on blogs).

    This is a ridiculous comment. Address the many substantive points made about IPRs. Everyone is open to fixing them if it was possible. Patent attorneys are a very reasonable group of people and it is fairly easy to see through you. I think I was right about you from the get go that you are a troll.

  25. Anon September 19, 2017 8:42 am

    Night Writer,

    As far as CP in DC being a troll or not, time will tell.

    I have read his posts and see a bit more thought than most of the “pharma” types which I hope does distinguish him and I hope that he continues to post his views (granted, I also hope that he takes my points above to heart and realizes that his perspective may be one “already trapped” – and that he recognizes that trap and seeks a higher perspective on many of the issues that our patent system faces.

    I do think that having an additional perspective – a thoughtful one that perhaps does not align with others can be a healthy thing – as long as the lynch mobs do not take over.

  26. angry dude September 19, 2017 10:03 am

    @CP in DC

    The problem is with dudes like you who destroyed US patent system for short-term monetary gains, destroying your own profession along the line

    You know all too well that pharma patents are different from hi-tech patents
    there is usually only one patent per drug so easy to monitor and enforce
    there are hundreds or thousands patent claims per each hi-tech device like smartphone

    You remove pharma patents – US pharma industry collapses next day
    you remove hi-tech patent incentive for independents and startups – US tech industry stagnates for the next 20 years before disappearing from the face of the Earth

    Obviously, honesty is not one of your traits

  27. David September 19, 2017 10:43 pm

    “Moreover, the PTAB has placed a heavy enough thumb on the scales that accused infringers almost always will pursue PTAB proceedings before considering settlement options.”

    I agree. It is a troubling development when the alleged infringer is provided an incentive to not simply roll over and pay off someone sending them a C&D letter. What’s next? The accuser having to prove their case????

  28. Anon September 20, 2017 3:49 pm

    What’s next? The accuser having to prove their case????

    I chuckle as David more and more comes across as a proverbial “Tr011” (or at least an Efficient Infringer mouthpiece).

    David, you do realize that an accuser would have to already prove their case (you know, in a court of law, with the charge of infringement).

    Your comment smacks at an attempt to denigrate patent holders, especially patent holders of patents that you may “feel” should never have been granted.

    Like as certain other person (on another blog), you seem to have lost sight of the provision – by law – that a certain clear and convincing level of presumption of validity attaches AT THE POINT of grant.

    Maybe instead of these types of snide comments, you should realize that one of the sticks in the bundle of property rights that a granted patent is that level of presumption, and just how valuable that stick in the bundle of property rights really is.

    Strong patent systems SHOULD have strong enforcement mechanisms.

    If your problem is on initial examination, the BETTER PATH is to then focus on making THAT initial examination better – and certainly NOT “cheapening” (or weakening) ALL granted patents by creating a faux “quality system” that operates only after the horse has left the barn.

    I have referenced this type of anti-Deming “Quality” from the perspective of one of my pre-law careers and the idea of using recall systems (alone, with NO feedback into any root-cause) in order to improve a manufacturing process.

    Such is a fallacy, and one that would (and should) be immediately recognizable to ANYONE who has spent any time in the manufacturing world.

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