Congress wanted to make changes to the U.S. patent system when it passed the America Invents Act (AIA) six years ago. Some of the changes were good, some not so good. For example, providing more stability to USPTO funding and granting the Agency fee setting authority were very positive. (Although, Commerce initiatives, such as Shared Services and FITARA (Federal Information Technology Acquisition Reform Act), threaten to siphon tens of millions of inventor fees from the USPTO.) Allowing the creation of regional USPTO offices was also great for inventors. Other parts of the AIA, such as post-grant proceedings (which became effective five years ago) have resulted in unintended consequences that contributed to a weaker U.S. patent system for inventors and innovators.
I want to believe Congress ultimately sought to strengthen the U.S. patent system with the AIA by providing a mechanism to more easily remove a small percentage of granted patents that were being inappropriately used in litigation. Specifically, patents that were being asserted with claim constructions not contemplated when the patent was examined. After all, Congress had been heavily lobbied with the narrative that NPE’s had been stretching patents well beyond the four corners of the granted patent and hurting the integrity of the patent system.
When the AIA was drafted, the new IPR, PGR and CBM proceedings promised to add some balance to a litigation system that had become too pro-patent in the technology areas (See E.D. Texas). Congress wanted to provide a more efficient system for challenging patents that should not have issued and reduce unwarranted litigation costs and inconsistent damage awards. By moving the decision of patent validity to the USPTO, it was reasoned, defendants would be spared from emotional decisions by unskilled juries. Unfortunately, the final AIA language, and its implementing regulations, lowered the requirements for invalidating a patent in addition to moving the decision to the PTAB. Thus, the defendant abuse exhibited in district court litigation has been replaced with patent owner abuse in the PTAB. Had the burden of proof and claim interpretation standard remained the same in both district court and the PTAB we would be better positioned to determine if the AIA achieved its intended goals of a more efficient system.
Earlier this year I made some suggestions in an IP Watchdog article to improve IPR’s by addressing some abusive practices. I hope that Andrei Iancu will consider these ideas once he is confirmed as Director of the USPTO. I also suggest that the Director reconsider all the regulations the USPTO implemented under 35 U.S.C. § 316(e), starting with the BRI claim interpretation standard.
Recent Supreme Court decisions, in just about every area of patent law, combined with the initial results of IPR’s, have unnecessarily moved the U.S. into the anti-patent territory. I remain optimistic, however, that changes can be made by the USPTO, and Congress, that will demonstrate 5-years from now that the AIA was good and that the U.S. values a strong patent system for inventors.