“What is good for the goose is good for the gander. If the PTAB is necessary to rid the world of bad patents, then let’s actually rid the world of bad patents, regardless of whether they were acquired by small and mid-size entities or whether they were acquired by large entities [or] whether the petitioner with knowledge of patent examiner error possesses the $15,500 filing fee or not.”
Yesterday, the United States Supreme Court ruled that the Director of the United States Patent and Trademark Office (USPTO), by and through his designees, the Patent Trial and Appeal Board (PTAB), has the unchallengeable authority to institute inter partes review (IPR) proceedings even when they are brought outside the statute of limitations.
Indeed, it is difficult to believe the above characterization of the Supreme Court’s decision could be accurate, but sadly it is—and it is no longer open for debate or discussion. The above description, as improbable and ludicrous as it sounds, is a fair, accurate and unassailably correct summary of the Supreme Court’s decision in Thryv, Inv. V. Click-to-Call Technologies, LP. The stupefying nature of the decision comes about because of an extraordinary interpretation of one statute that has consistently been read to trump all logic, reason and accountability; i.e., that in 35 U.S.C. 314(d), Congress said that decisions to institute an IPR are not judicially reviewable.
What the Supreme Court has now said is that §314(d) is the sovereign statute, even to the point that it trumps a statute of limitations. This was made clear by the decision in Thryv because 35 U.S.C. 315(b) requires IPR petitions to be brought within one year of the petitioner being sued for patent infringement. So, what if the PTAB were to institute an IPR proceeding on a petition filed more than one year after the petitioner was sued for patent infringement? According to §315(b), the petition cannot be granted. The language of §315(b) is mandatory and leaves no room for interpretation. Petitions filed by petitioners who were sued more than one year prior to the filing date on the petition must be denied. Well, at least until yesterday.
PTAB Reigns Supreme
According to the Supreme Court, because Congress has prevented judicial review of institution decisions, that means that there is no ability for an Article III court to enforce the statute of limitations in §315(b), not even the United States Supreme Court. Thus, we now have definitive confirmation of what opponents of the PTAB have said all along—that the PTAB reigns supreme without any checks or balances on their power. Even the Supreme Court says they are helpless to stop a rogue PTAB panel that might openly disregard something as fundamental and basic as a statute of limitations.
Clearly, with the Supreme Court having ruled in Cuozzo that post grant challenges are constitutional, and then in Thryv ruling that even they cannot provide even a modicum of oversight, the PTAB is the most important patent court in the United States. Their decisions on the most fundamental process issues are not subject to any judicial review, and as we have seen over and over again on a substantive level, the Federal Circuit refuses to provide any meaningful judicial review. It is hard to fault the Federal Circuit though, since the Senate-confirmed Article III judges on the Federal Circuit make up an inferior tribunal to those Administrative Patent Judges on the PTAB who are not Senate confirmed, are unconstitutionally appointed officers (see Arthrex) and often have only several years of legal experience prior to becoming judges. Clearly, the Federal Circuit wouldn’t want to run afoul of the real judicial power in the patent system.
If the PTAB is So Vital, Make it Accessible
Still, this begs an important question that Congress must soon wrestle with regarding access to the PTAB. We have been told over and over again just how essential the PTAB is to the patent system. How necessary the PTAB is with respect to rooting out bad patents that never should have issued. And, honestly, the PTAB has been very, very good at killing patent claims and patents. But there is a fundamental unfairness at the PTAB. If the PTAB is so important, why are the fees so high? If the PTAB plays such a vital role in correcting the egregious mistakes of patent examiners (of which there are apparently many given the number of valuable patents that die upon review), why should only those patents that are owned by independent inventors, universities, start-ups and research and development companies be the targets? What about the truly ridiculous, idiotic patents that are issued to large entities?
It is time for us to embrace the PTAB. The fight to end the PTAB has gone nowhere, and it will continue to go nowhere. Congress created the PTAB less than 10 years ago and they are not about to acknowledge having made a mistake, even if they thought they made a mistake, which they don’t. Congress likes patents being challenged because those with large patent portfolios control marketing challenges and manufacturing and they want to implement the inventions of others. The PTAB makes their life easy. They run no risk of losing anything.
Obviously, the PTAB is here to stay, and the PTAB only continues to grow with power. So, it seems time to use the PTAB instead of constantly trying to topple it.
What’s Good for The Goose
The USPTO is denying access to the PTAB, a vitally important tribunal, with exorbitant fees. Such high fees to institute IPR proceedings guarantees that those with money can bring these challenges against upstart innovators, while those upstart innovators who have little funding (as is the case at the beginning of every enterprise) have no ability to challenge the bad, bogus, clearly unpatentable claims and patents issued to tech giants and pharmaceutical companies. Because, unless you believe patent examiners only make mistakes when examining valuable innovations invented by small entities, you must believe patent examiners make mistakes when examining patent applications filed by large entities.
Indeed, it seems more likely that patent examiners would make more mistakes when examining patent applications filed by large entities who are frequent filers. These entities often refuse to take no for an answer, eventually wearing down patent examiners in their search for exclusive rights on marginal innovations to reward inventors with another plaque they can hang on their wall so they can tout just how innovative they are, using patents as an imperfect proxy for innovation.
Now, at a time when the world is fighting to stay alive, as we collectively fight COVID-19, it seems practically immoral, irresponsible and unconscionable for the USPTO to charge any fee for the institution of an IPR. Now is the time to be busting patents of those with tens of thousands of patents in search for cures, treatments and solutions for safely reopening the economy. Now is not the time to have $15,500 fees for the filing of an IPR to challenge bad patent claims that never should have issued in the first place. What is good for the goose is good for the gander.
Stop Picking Winners and Losers
If the PTAB is necessary to rid the world of bad patents, then let’s actually rid the world of bad patents, regardless of whether they were acquired by small and mid-size entities or whether they were acquired by large entities. Let’s rid the world of bad patents regardless of whether the petitioner with knowledge of patent examiner error possesses the $15,500 filing fee or not.
Charging exorbitant fees to file IPR petitions does nothing less than pick winners and losers and prevent those without money, but knowledge of egregious Patent Office mistakes, from helping to liberate non-inventions from the clutches of evil monopolists.
If the PTAB is supreme, let the PTAB be supreme. And let everyone have access, regardless of ability to pay.
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