Weakening Our System of Patent Challenges Will Hurt Consumers, Unions, and Health Care Providers

The Stronger Patents Act, S. 2082, won’t give us a stronger patent system—just the opposite, in fact. It is a deliberate attempt to dismantle one of the few effective forums for challenging wrongly-issued patents. The bill would put dramatic and unwarranted changes into effect that would make the U.S. Patent Office’s system of inter partes review, or IPR, much less effective. That means the Stronger Patents Act will weaken the quality of issued patents and the patent system as a whole.

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TELL THE SENATE TO REJECT THE STRONGER PATENTS ACT

Weakening IPR procedures will restore the dangerously unbalanced patent system that produced a patent troll epidemic. We know that kind of system does real harm: the best available studies indicate that patent trolls cost the economy billions in unnecessary legal costs. Meritless patent claims are still a serious problem, and one that we routinely hear about at EFF. But the IPR system has helped stem the tide of wrongly-issued patents and chip away at the power of patent trolls. By helping people and organizations challenge bad patents more cheaply and quickly, IPR proceedings are taking a real bite out of the patent troll business model.

We’ve documented many situations in which patent trolls seek to extort money from small developers and other innovators in the tech world. But technologists aren’t the only victims of an unbalanced patent system. That’s why we’ve signed onto an open letter [PDF] asking Congress to strengthen, not weaken, the IPR process.

The letter, in which EFF is joined by unions, health care organizations, and consumer groups, explains how the IPR process has saved more than $2 billion in deadweight losses that would have gone to legal fees, to defend against patents that were weaponized against small businesses and even public agencies. As the letter explains, 

IPR was used by the non-profit Electronic Frontier Foundation to successfully challenge a patent that claimed to cover all forms of podcasting. The owner of this patent, Personal Audio LLC, was asserting this patent against individuals and small businesses for creating podcasts. IPR allowed them to continue their business without harassment. IPR was also successfully used by the Los Angeles Metropolitan Transportation Authority to challenge a patent that claimed to own the toll technology used by LA Metro.  The USPTO found the patent to be invalid. A generic company recently invalidated a number of patents covering Lantus®—an insulin product that nets Sanofi-Aventis $15 million per day and has been the subject of numerous price hikes that far exceed inflation. 

The Stronger Patents Act is a recurring pet project of Sen. Chris Coons (D-Del.). It’s time for Senator Coons to stop re-introducing this bill. At this year’s hearing, one of the only other Senators on the IP Subcommittee who even showed up—briefly—was Chairman Thom Tillis (R-N.C.). Notably, Chairman Tillis himself kicked off the hearing by saying that IPR is “a valuable tool to challenge bad patents.” He also correctly noted that the other major provision of the Stronger Patents Act, which would be to reverse the Supreme Court’s landmark eBay v. MercExchange decision, would be a huge step backwards because it would empower patent trolls. 

“By giving patent trolls the right to an automatic injunction, this bill could give them the power to shut down startups and thousands of other productive companies,” Tillis said.

We couldn’t agree more. It’s no surprise that other senators lack enthusiasm for this bill. The Stronger Patents Act should be withdrawn, and senators might even want to start working on a bill that would make the patent system work better. That would involve more and stronger IPRs, not fewer of them.

TAKE ACTION

TELL THE SENATE TO REJECT THE STRONGER PATENTS ACT