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The US Patent Office – of which the PTAB is a part – issues patents. That’s why it exists. So if the PTAB finds an error in a granted patent, fix it. Maybe that fix renders the patent so narrow it’s worthless in the market. If so, that’s the applicant’s issue. The point is that all the components of the Patent Office should be resources for inventors, not adversaries, working to issue valid patents. As Director Iancu says, “It is a new day at the PTAB! All these enhancements advance Dir. Iancu’s underlying theme, forcefully emphasized at numerous venues over the last months: Cherish our patent system’s enabling capabilities, and as necessary, propose narrowly-tailored solutions that address actual shortcomings. In other words, ex ante, would anyone have seriously proposed the Alice decision as the most surgical way to deal with abusive demand letters sent to coffee shops?
87.2% of patents in the study, per the table, were subjected to just 1 or 2 IPR petitions – so gang tackling is no big deal. But make this simple observation: If a patent is killed in its first IPR, it can’t possibly be considered for a second one. The USPTO keeps their denominator fixed (and too large), which artificially lessens the reported percentage of patents which have large numbers of petitions filed against them. The calculation shouldn’t be 55/4,376 = 1.3% because by the time a patent faces its 7th(!) IPR petition, the universe of eligible-for-challenge patents is much smaller than during the first petition.
Envisioning what Director Iancu should say to his Patent Office team on his first day in office… People have been asking me about my new job: Are we going to be advocates for a “strong” patent system or a “weak” one? Are we in favor of “good” patents and opposed to “bad” ones? I answer that those questions have no place in this Office. Our ideal is to issue every valid patent applied for – and not a single invalid one. Are we going to make some mistakes along the way? Of course we will. Every government agency does – and their work isn’t nearly as complex as ours!
What’s abundantly clear – and disastrous for both the patent system and the public – is that the PTAB’s Kafkaesque rules for complaining about anything outside of what an expert stated in a submitted declaration, including allegations of judicial misconduct, is undermining the public’s already marginal confidence in the entire IPR process. Even Franz Kafka himself would be bewildered by a process which requires one to seek permission to complain – from the very body about whom a litigant is complaining.