Protecting the Little Guy… or Bad Patents?

The USPTO is considering modifications to the rules for inter partes review (IPR) and post grant review (PGR) proceedings before the Patent Trial and Appeal Board (PTAB). Ostensibly this is to “better align… with the USPTO’s mission to promote and protect innovation and investment…” The proposed changes give the USPTO discretionary denial over who can institute challenges to patents, so that “appropriate steps” can be taken to “curb abusive actions” and “limit unnecessary and counterproductive litigation costs.”

The Federal Register detailing the proposed changes specifically mentions third parties asking for reviews of patents even when they don’t have a concrete stake in the outcome. If passed, the Director will have wider discretion to deny proceedings to “ensure that certain for-profit entities do not use the IPR and PCR processes in ways that do not advance the mission and vision” of the USPTO. The proposal also specifically mentions protecting “individual inventors, startups, and under-resourced inventors.”

The USPTO is considering adopting a “substantial relationship” test to evaluate whether a challenger is sufficiently related to a party in a challenge. If the relationship is deemed not substantial enough, discretionary denial can be applied.

On the surface, the rule changes seem laudable enough: limit unnecessary and counterproductive litigation and protect the little guy. But it is through the IPR process that patent trolls can be held accountable. It allowed members of the public to challenge bad patents, a process that trolls hate. While the proposal’s language is about protecting the little guy, it has been very easy for even the most sue-happy trolls to represent themselves as “small inventors”. While the Patent Office can pat itself on the back for protecting the little guy, they may in fact be hampering the public’s ability to challenge patent trolls.

While the mission of the USPTO is indeed to protect inventors and foster innovation, a bad patent, which is a 20-year monopoly on an invention, does the opposite. The public needs the right to challenge such patents.