Trench Warfare over Trump’s Common-Sense PTAB Reforms

On March 25, Patent and Trademark Office Director John Squires will appear before the U.S. House Judiciary Committee for an oversight hearing. The Intellectual Property Subcommittee chairman, Rep. Darrell Issa, seems intent on using this forum to advance the weakening of the American patent system.

PTO proposed a rule last fall to rectify a situation that for more than a decade has hampered American inventors’ reaping the fruits of their labor. Frequent users of now-notorious “patent death squads”—namely, Big Tech companies and a few Chinese and other foreign state-owned or -subsidized national champions—easily get away with patent infringement by wiping out the issued patents they are infringing.

The Coming of Patent Death Squads

The 2011 America Invents Act established an administrative forum for challenging patent validity: the Patent Trial and Appeal Board. PTAB has demolished quiet title in patents—essentially deeds to property that didn’t previously exist—that, typically, are being infringed by deep-pocketed bullies employing predatory, or “efficient,” infringement.

PTO’s proposed rule would for the first time make PTAB operate as AIA advocates claimed it would. Congress said of its intent for the new administrative venue:

“The intent of the post-grant review process is to enable early challenges to patents, while still protecting the rights of inventors and patent owners against new patent challenges unbounded in time and scope. . . . The Committee recognizes the importance of quiet title to patent owners to ensure continued investment resources. While this amendment is intended to remove current disincentives to current administration processes, the changes made by it are not to be used as tools for harassment or a means to prevent market entry through repeated litigation and administration attacks on the validity of a patent. Doing so would frustrate the purposes of the section as providing quick and cost effective alternatives to litigation. Further, such activity would divert resources from the research and development of inventions.” H.R. Rept. 112-98 (June 1, 2011), at 47–48.

My book To Invent Is Divine explains:

“PTAB was promoted during AIA debate as a faster, cheaper, more efficient alternative to litigating in federal court to resolve patent validity disputes. Its advocates asserted PTAB would give patent challengers ‘one bite at the apple.’ Proponents claimed ‘weak patents’ and a ‘litigation explosion’ driven by ‘patent trolls’ weighed on the patent system and innovators. Those claims were little more than spin.”

Instead, PTAB provides infringers virtually unlimited bites at invalidating an infringed patent in both court and PTAB throughout the entire patent term. We can be certain that the administrative postgrant review scheme’s purpose has been “frustrate[d]” and real innovators’ R&D resources “divert[ed].”

Battle over PTAB Reform

Such predatory infringement would be curtailed by the PTO proposed rule. That’s why the infringers’ lobby is aggressively trying to derail or water down the proposal. Opponents unleashed bots to deliver thousands of copycat comments in the public comment docket. They are also attempting to arm-twist the Trump administration into withdrawing the threat to the key to predatory infringement.

Their generic pharmaceutical allies don’t do R&D to discover and develop novel medicines, but merely produce copies of innovator companies’ products after the latter have taken all the risk, raised the investment capital and made a new product of great value. Generics and others perpetuate false claims about new medicines’ patents.

They assert that PTAB access is crucial for the generics sector and less than carte blanche PTAB access will lift drug prices, but those assertions are false. Just 3 percent of PTAB filings involve patent validity challenges related to standard medicines while 2 percent involve biologics. In fact, less than 20 PTAB cases in 2024 involved a pharmaceutical patent.

Lies, Damn Lies and Statistics

Similarly, bogus assertions and suspect statistics about drug patents’ effect on the price of a medicine are likely to be raised to Director Squires in the hearing. As PTO said in connection with its enlightening study Sen. Thom Tillis requested, “simply quantifying raw numbers of patents and exclusivities is an imprecise way to measure the intellectual property landscape of a drug product because not every patent or exclusivity has the same scope.”

Those trafficking in flimsy, exaggerated drug patent numbers, such as the Initiative for Medicines, Access & Knowledge, or I-MAK, and R Street, have done more to mislead lawmakers and the public than to enlighten those who should be committed to making policy based on valid, credible evidence. Illustrating the problem, some on Capitol Hill have bought into the misinformation. Lawmakers have sponsored legislation that swallows myths like “product-hopping” and “evergreening” lock, stock and barrel. Their credulity leads to their wielding antitrust sledgehammers at pharmaceutical patents based on false narratives.

Thankfully, Sen. Tillis’s suspicions have prompted truth-seeking. Prof. Adam Mossoff’s 2022 report “How Unreliable Data Have Infected the Policy Debates Over Drug Patents” fired a broadside. He cited the PTO study in another Hudson Institute missive, further lacerating I-MAK’s and others’ phony patent counts.

Down to Brass Tacks

Now with the live prospect of delivering PTAB reforms, Conservatives for Property Rights and other conservatives among other parties strongly support PTO’s proposal, saying so in distinct comments, and communicating that support to the White House.

What may transpire at the House hearing is a Republican leading the charge against a proposal by a Republican administration. It’s unlikely many committee Republicans or Democrats will take the bait.

The problem for Mr. Issa and his allies, many of whom were party to PTAB’s creation—aside from risking President Trump’s wrath—is that the facts are decidedly against them. PTAB reform stands out as crucial for American invention, and thus U.S. global innovation leadership, competitiveness, and economic and national security. There’s no good reason not to adopt the proposed rule—other than flacking for Big Tech and other serial patent infringers.