Critics of the Patent Trial & Appeal Board (PTAB) are out in force decrying the work of the PTAB as anti-patent. This criticism flows from the unfavorable outcomes of the 30 or so concluded Inter Partes Review (IPR) and Covered Business Method (CBM) proceedings to date. That is, some consider the heavy number of claim cancellation decisions as evidence of a bias against patentees. Nothing could be further from the truth.
First, patents now being asserted were drafted to survive district court scrutiny. As is well known, when in court, patentees benefit from a clear and convincing evidentiary standard, a presumption of patent validity, and a non-technical audience. Due to the significant obstacles of demonstrating invalidity before a court, infringement concerns have been the primary driver of patent procurement practices to date. For this reason patents are routinely procured to obtain the broadest possible claim scope for the purpose of ensnaring infringers; often times overly broad.
On the other hand, the PTAB counteracts each Read the rest of this entry »