By: Beau Phillips
Those who advocate for curtailing the Patent Trial and Appeal Board’s (PTAB) ability to improve patent quality by invalidating low-quality patents often raise the specter of the PTAB being used to ‘harass’ small inventors and small businesses. These assertions typically take one of two forms: 1) the PTAB has been turned into a vehicle for large corporate interests to put their thumb on the scale and take advantage of the ‘little guy,’ or 2) the PTAB creates a way for small inventors to be harassed repeatedly and forced to defend supposedly valid patents over and over.
On both counts, real data simply does not support the (false) narrative.
First, as an analysis of PTAB petitions recently showed, “few small inventors and individuals have ever been subject to [PTAB] review since 2016.” In fact, with 1,387 PTAB reviews filed in 2021, patents held by a total of only 13 small inventors or individuals were subject to any type of post-grant review. In 2020, patents held by a total of only 9 small inventors or individuals were reviewed out of the 1,538 PTAB reviews filed that year. The same trend holds going all the way back to 2016. The data clearly shows that PTAB review does not threaten small inventors holding valid patents. It is only bad actors – typically non-practicing entities wielding low-quality patents for their own financial gain – who have any reason to be wary of a review of their patents.
The claim that the PTAB is a tool through which small businesses and small inventors are repeatedly harassed also stands on similarly dubious grounds. Data from the U.S. Patent and Trademark Office shows how rare it is for serial petitions to even be filed, let alone successively implemented. In 2020, successful serial petitions comprised less than 1% of all PTAB challenges, with only 2% of PTAB challenges being serial petition attempts.
Despite what patent trolls may want you to believe, the data shows that PTAB is not rife with abuse and is not targeting small inventors. In fact, the best way to continue protecting legitimate innovators of all sizes from bad actors armed with bad patents is to restore full and unfettered access to the PTAB review process as an overwhelming bipartisan majority in Congress originally intended when they passed the America Invents Act.
More than 50% of all patent infringement litigation is filed against American manufacturers. Instead of specious arguments unsupported by data, manufacturers need a robust PTAB review process that doesn’t allow low-quality patents to stand in the way of economic growth and innovation.