Don’t Let Big Tech Sabotage U.S. Innovators’ Protections

Former Chief Judge of the Federal Circuit Paul R. Michel and Chris Israel, a former intellectual property enforcement coordinator with the Department of Commerce, argue that Big Tech is staging a multi-pronged attack to steal the IP of small business. They offer ways for policymakers to protect promising inventors from infringement by corporations with deep pockets.

A bipartisan group of senators just introduced a bill to crack down on Chinese companies that steal hundreds of billions of dollars in American intellectual property every year. Unfortunately, another urgent threat to American inventors’ IP is emerging here at home—Big Tech—and it’s unclear if legislators will protect innovators’ rights from duplicative attacks.

In 2011, Congress established the Patent Trial and Appeal Board (PTAB) within the U.S. Patent and Trademark Office. The PTAB was supposed to offer companies that want to challenge the validity of patents—typically patents owned by a rival company—a more efficient alternative to the court system.

The PTAB has proved extraordinarily useful to patent challengers. The board has invalidated as many as 84% of the patents, partially or entirely, that it has fully adjudicated. That figure suggests that either the USPTO is really bad at its job of deciding whether to issue a patent in the first place—spoiler alert: it isn’t—or there’s a thumb on the scale.

That thumb belongs to Big Tech.