Patent Act Rewritten to Appease Bio/Pharma Lobby
In a surprising change of course, the Senate bill known as the 'The Patent Act" (S.1137)
has morphed into a PTAB reform bill. The initial version of the Bill hardly touched the patentability trials of the USPTO's Patent Trial & Appeal Board (PTAB). A competing bill, known as the "Strong Act," — on the other hand— proposed gutting these highly effective patent challenge mechanisms
. After the Manager's Amendment to the Patent Act on Tuesday (here
), at least with respect to the PTAB, both bills now propose significant alterations to the PTAB's patent challenge mechanisms.
As a reminder, the impetus behind the AIA of 2011 was to thwart abusive litigation fueled by weak patents. It was argued pre-AIA that patents were issuing from the USPTO of overly broad scope and on questionable technology. These patents were then used as tools by extortionists (patent trolls) to extract large settlements from the domestic tech industry. This cottage industry was spawned from an over abundance of such patents. And, since defeating these patents in a district court was quite difficult (due to the deferential treatment of U.S. patents) and expensive, settlement was the only option. The AIA provided relief from these practices by introducing a low-cost, expedited "opposition" to such patents at the PTAB known as Inter Partes Review (IPR) and Post-Grant Review (PGR). That is, the PTAB challenge proceedings of the AIA were designed to weed out weak patents, quickly and cost effectively. These proceedings have been very effective to the delight of some of America's largest tech companies (i.e., serial defendants).
Since enactment of the AIA, however, many have realized that when presented with appropriate evidence, the PTAB does not discriminate. It is not just weak troll patents that are being cancelled, and this has a bunch of folks, especially the Bio/Pharma lobby, up in arms.