Posts Tagged: "Kyle Bass"

Patent reform is back on the agenda when Congress returns from recess this week. On Tuesday, April 14, 2015, at 2:00 pm ET, the House Judiciary Committee will hold a hearing on H.R. 9, more commonly referred to as the Innovation Act. Then on Thursday, April 16, 2015, at 11:00 am ET, the Commerce, Manufacturing and Trade (CMT) Subcommittee of the House Energy & Commerce Committee will also hold a patent related hearing. The subject of the CMT hearing will be the Targeting Rogue and Opaque Letters Act (TROL Act).

Congress created AIA trial proceeding to combat trolls, not create an altogether new class of them. Since the initial filings of Hayman, the STRONG ACT has been introduced in the Senate and includes a provision that would require standing for IPR petitioners (presumably to thwart such filings). However, companies not only employ IPR as an alternative to ongoing litigation but as a due diligence tool to avoid such situations in the first instance. Innovators looking to develop a new product line, or new area of business should have the freedom to clear the landscape of improvidently granted patents via the PTAB without having to wait for a lawsuit, or threat of one. Such knee-jerk legislative fixes will have unintended, and unfortunate consequences.

Time and time again throughout the legislative history post grant proceedings were explained as being a faster, low-cost alternative to litigating validity disputes in Federal District Court. That being the case, it would seem extremely odd that any petitioner could bring a post grant challenge to a patent when that petitioner would not have standing to sue to invalidate the patent in Federal District Court. However, the statute does say that a person other than the patent owner can file a petition to institute an inter partes review.

Gulbrandsen’s chief complaint with the U.S. system centers around the fact that it has become enormously easy to challenge issued patents once they have been granted. In fact, organizations in pursuit of acquired technology are leveraging the kill-rate at the Patent Trial and Appeal Board (PTAB) at the United States Patent and Trademark Office (USPTO), to negotiate lower licensing payments. Threats are made that patents will be challenged in Inter Partes review, “so that you amend the license and reduce the fees,” Gulbrandsen explained. “So, immediately you know that devalues the patent and devalues the license agreement that you’ve got.”