Alex Moss | July 31, 2023

The United States Patent and Trademark Office (USPTO) has a crucial mission: encouraging the creation and dissemination of new technology. But instead of fulfilling its duty to the public by awarding patents to truly new and useful inventions, the USPTO is, regrettably, increasingly bent on catering to the interests of private companies by protecting invalid patents. This disturbing reality has become evident as the USPTO pushes forward proposals to limit the public’s ability to challenge invalid patents, thereby exacerbating the harm they inflict on U.S. consumers, patients, small businesses, and genuine innovators.

Patent quality matters. When a patent on an obvious variation of existing technology gets approved, it hands monopoly power to entities that have depleted rather than contributed to the public stock of knowledge. The repercussions cannot be understated: higher prices for essentials like prescription drugs, agricultural inputs, and electronic devices, but less space for competition and innovation by small and early stage businesses in the U.S.

The agency's latest move—proposing regulations that inhibit the public's ability to challenge invalid patents—is a step in the wrong direction, as we have explained. Inter partes and post-grant reviews proceedings are the only tools that the public has for challenging wrongly granted patents outside of federal courts. These reviews provide essential and irreplaceable protection for members of the public threatened by invalid patents, but lacking resources or legal standing to challenge them in court.

The proposed regulations, however, would tilt the scales in favor of patent owners, making it harder than ever for the public to successfully challenge patents that should never have been granted. These measures not only undermine the spirit of the IPR but also strip away an essential tool for mitigating the flood of invalid patents plaguing the system. The public's right to challenge questionable patents is a vital aspect of a healthy and balanced intellectual property ecosystem.

That’s why the Public Interest Patent Law Institute (PIPLI) submitted comments, urging the USPTO to change course. So did many members of the public, including individual technology creators and users, nonprofits, small businesses, and generic drug manufacturers.

The mission of the USPTO is not to grant as many patents as possible or save invalid patents from well-founded challenges; it is to grant patents for advancements in technology that propel scientific knowledge and our society forward. Why is the USPTO willing to sacrifice its mission—and the public’s interest—to please patent owners?

In the hope of answering this question, PIPLI submitted a FOIA request, requesting records of its communications about the proposal with outside groups, including lawyers at firms like Tensegrity, which is known for representing non-practicing patent owners. More than a month ago, a FOIA Officer informed PIPLI that responsive documents would be coming soon. Last week, we were told the same thing again, but we are still waiting. We will let you know when we do.

It's past time for the USPTO to shift its focus from protecting invalid patents to ensuring patents go to inventions that represent genuine scientific progress, boost competition and economic growth, enhance access to essential products and services, and thus benefit the American public. In the meantime, the USPTO’s latest proposals must be critically examined and reconsidered. Otherwise, they will suppress the very engine of innovation the patent system is meant to support.