Don’t Let Congress Hand Patent Abusers Their Ultimate Wishlist

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Congress is considering a bill that would throw out the best defenses against bad patents. The Senate IP Subcommittee recently had a hearing about the Stronger Patents Act, a batch of recurring terrible ideas that has been introduced by Sen. Chris Coons (D-Del.) for the third time in three years.

The Stronger Patents Act would tear apart inter partes review (IPR), an critical tool for challenging bad patents. People who are charged with patent violations shouldn’t have to have millions of dollars in the bank to defend themselves. IPR provides a more cost-effective way of evaluating patents than expensive federal court litigation.



Patent trolls, drug companies, and IP lawyer groups have been attacking IPR for years now, and they’re all big supporters of this bill. Big patent owners have grown so used to gaming the patent system that they’re willing to throw out IPRs, despite the fact that these reviews are clearly in the public interest.

IPR allows companies to fight back against patent accusations for a fraction of the cost of district court. It also allows organizations like EFF to challenge bogus patents like we did when we busted the podcasting patent. If the Stronger Patents Act passes, EFF and our supporters won’t be allowed to file challenges anymore.

Taking a second look at patents is in the public interest. In the seven years IPRs have been active, the specialized judges at the Patent Office have thrown out more than 1,500 patents that never should have been issued in the first place. Many of those are, unsurprisingly, software patents.

The U.S. Patent Office often issues patents it shouldn’t have, particularly in areas like software, where examiners don’t always have access to the most relevant prior art. The office is funded by the fees paid by patent applicants. PTO examiners spend an average of about 18 hours per application, and that leads to wrongly issued patents.

Too often, weak patents get used to threaten small businesses—patents that claim things like picture menus, or crowdfunding, or online contests. The IPR process is the best process, so far, for dealing with those improperly issued patents.

When IPR was challenged in court, the Supreme Court upheld the process. The public has an important interest in ensuring that patents stay within their proper bounds.

The Stronger Patents Act has another bad provision that will give huge amounts of leverage directly to patent trolls. Under rules laid out by the Supreme Court in 2007, it’s very hard for patent trolls to get court-ordered injunctions that can knock products off the market. The Stronger Patents Act would undo that rule, giving patent trolls leverage to scare massive cash settlements out of companies. In 2006, Blackberry (then called RIM) paid out a $612 million settlement to a patent-assertion entity when it was threatened with an injunction. That money went straight into the hands of some bad actors in the patent world, who used the capital to invest in—what else—more lawsuits against tech firms.

The Stronger Patents Act will wreak havoc on a system that’s already balanced in favor of patent holders. Tell Congress to reject this proposal.



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