On October 17th, the Alliance of U.S. Startups and Inventors for Jobs (USIJ) released a report detailing the organization’s research into serial attacks on high quality patents at the Patent Trial and Appeal Board (PTAB). The USIJ’s research shows that, far from being a cheaper alternative venue for small businesses to challenge the validity of weak patents being asserted against them as was originally intended, the administrative tribunal has instead become a tool for rich, sophisticated companies who are able to harass owners of valuable patents with duplicative petitions filed either by themselves or by profiteering entities which weren’t envisioned when the Leahy-Smith America Invents Act (AIA) of 2011 was passed into law.
The USIJ report states that a basic premise behind Congressional enactment of the PTAB through passage of the AIA was to give those parties being sued or threatened with a suit for patent infringement “one bite at the apple” to challenge patents through inter partes review (IPR) or other AIA trial proceedings. Ironically enough, this “one bite at the apple” limitation is most egregiously sidestepped by consumer tech giant Apple, the top filer of IPRs at the PTAB. 56 percent of the IPR petitions filed by Apple are duplicative in that they challenge the same claims from the same patents which Apple has already challenged in other petitions. The remaining four of the top five IPR petitioners have also filed duplicative petitions in more than one-third of their petitions (Samsung, Google, Microsoft, LG). This data, cited by the USIJ, comes from research on IPR challenges produced by Steven Carlson and Ryan Schultz of Robins Kaplan LLP.