The Market Institute President Charles Sauer has a new article in The Washington Examiner’s Restoring America series on whether Congress is ready to finally pull the plug on the patent killing Patent Trial and Appeal Board.
“We all know the basic plot of gladiator-style movies : The underdog battles in a stadium where the public is usually cheering against them, and the match is decided by the evil tyrant giving the singular thumb up or thumb down. It is brutal, it is dramatic, and lives are at stake.
This plot is great for a movie, but our government now hosts a modern-day version of these gory battles. The U.S. Patent and Trademark Office is hosting a “ Stadium Tour ,” wherein inventors are put in the place of the gladiator and are forced to fight for their property not only against big companies and the largest foreign competitors in existence but also the federal government!
It is a tour that seems like it has to be a parody, but the outcomes are real — and life-changing. Sounds like the U.S. version of the British show Dragon’s Den , but unfortunately, it isn’t.
These fights are in front of what is called the Patent Trial and Appeal Board, started a little over a decade ago as a means for cheaper intellectual property resolution than the courts. However, almost from the outset, it has instead been more of a patent death squad. And while the patent kill rates by PTAB are disputed, some reports believe that up to 84% of patents are either killed completely or significantly altered.
In fact, in one abominable occurrence during the Obama administration, PTAB first ruled in favor of the inventor, so the PTAB director added another judge to the panel — but it still ruled in favor of the inventor. Finally, another judge was added, and the Obama administration got what it wanted: PTAB stripped the inventor of their patent.
As it is currently managed, the PTAB functions solely to strip inventors of their patents. It is a spectacle. It is a kangaroo court. It is Joaquin Phoenix in Gladiator . It is the inventor in the stadium receiving either a thumb up or a thumb down from a tyrant.
And unfortunately, it is this graphic scene that government wants to show off to the public.
Inventors represent the future of the country. In fact, patent rights are the only explicit right included in the original Constitution (Article 1, Section 8). Patent rights give inventors, innovators, and investors the confidence they need to invest in their idea because it can be defended. With a patent, and strong patent rights, the small garage inventor can take on the biggest companies in the world.
Without patents, the largest companies can steal ideas with reckless abandon and continue to dominate markets. Strong patent rights are the means by which the United States has revolutionized the world and become the leading power that we are today.
Not only has the PTAB hurt inventors, but it has hurt the competitiveness of the U.S.”