The Patent Trial and Appeal Board (PTAB) was established in September of 2012 as part of the America Invents Act.  PTAB's original purpose was to review complaints regarding the validity of patents, conduct trials and render decisions to determine the validity of patents.  Ever since, big tech has used PTAB to steal patents from inventors and stymie innovation. 

The Senate Judiciary Committee is considering two important patent laws to try and take some of that power away from big tech and put it back into the hands of patent-holding inventors.   The Promoting and Respecting Economically Vital American Innovation Leadership (PREVAIL) Act and the Patent Eligibility Restoration Act (PERA) seeks to return the patent system back towards it's intended role to foster and protect innovation.  Or, better explained in the U.S. Constitution; "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

The PREVAIL act addresses troublesome loopholes big tech consistently uses to steal patents from inventors.  These proposed reforms include protecting inventors from harassment, instituting a code of conduct for PTAB judges which would create stricter standards and a standing requirement to initiate challenges resulting in the board operating as a fair tribunal.

Additionally, because the current PTAB standard of proof that a patent should be invalidated is so weak, proposed reforms include raising the standard from a “preponderance of evidence” to “clear and convincing evidence” when invalidating patents and patent holders' rights. This measure would offer stronger protections to patent holders while reducing frivolous claims by aligning PTAB with district court standards.

Swamy Narayanaswamy is the Chief Technology Officer & Co-Founder of CalQLogic, Inc.  He says reforms are needed now to ensure Americans stay competitive on the world stage.

“As much as everyone likes to trash Uncle Sam, the US government understands the crucial importance of innovation in maintaining America's competitive position in an international playing field.  Reforming the patent system and how it works would further turbocharge and maintain America's technology advantage -- a strategic win, whose value you cannot overstate.  Monetizing the patents that are ours is a crucial business objective for technology entrepreneurs.”

The Patent Eligibility Restoration Act (PERA) aims to correct the vagueness and unpredictability presented by the two-step Supreme Court decision known as the Alice/Mayo test for patentable subject matter.  The Alice/Mayo two-step test is routinely criticized for its lack of clarity regarding patent-eligible subject matter particularly in the tech and bio tech industries. This vague set of standards routinely harms start-ups and individual inventors and their inability to afford the legal battles required to properly defend their intellectual property and patents. The Alice/Mayo test disproportionally favors the largest companies with greater legal resources thereby reducing competition and hindering innovative progress.

I believe If PERA succeeds at providing clearer guidelines, it could help clients of mine like Swamy Narayanaswamy make our country a more influential marketplace for innovation tech industries. Without it, inventors face cash-strapped legal battles just to protect themselves from having their patents arbitrarily invalidated.

“Bill Ramey runs a small law firm that helps inventors monetize their patents on a contingency basis.  He's a little guy fighting the good fight for other little guys who have no other alternative,” says Narayanaswamy.  “Without his firm, inventors would simply stay locked out of legitimate opportunities to monetize their IP.   That's neither fair nor just.  Bill demands basic corporate accountability on matters of IP infringement and licensing -- that might feel like a huge and unacceptable imposition to the big companies and industry consortia who would like to see Bill eliminated entirely from the picture. That's the bottom line: negotiate in good faith with inventors when it comes down to patent infringement or licensing.  Fair agreements are good for all stakeholders, including the country itself.”

The mission of the U.S. Patent and Trademark Office is to drive innovation, entrepreneurship and creativity for the benefit of all people.   Policymakers must reform a system stacked unfairly against our homegrown innovators,  protect the rights of inventors, and discourage big tech patent abuse. While not a comprehensive fix, I believe the PREVAIL Act and PERA are an excellent start to taking back the patent system for Americans.