Patents’ Presumption of Validity Routinely Ignored at PTO

In an IPWatchdog post today Neal Solomon suggests his recommendations for striking a better balance at PTAB between petitioners and patent holders. He concludes with the following;

“IPRs are a sort of blockage designed by infringers to attack the patent system on the mistaken belief that all patents are bad and weak. The illegitimate procedures embedded in IPRs at the PTAB show that the issue of patent quality driven by the big tech narrative is the source of many problems in the patent system. Ultimately, the costs increase dramatically for patent holders to defend a previously issued patent in the PTO, which provides a huge advantage for infringers to maintain their efficient infringement strategy of ignoring and infringing patents. The low barrier to attack patent validity undermines the incentive to invest in R&D, particularly for capital constrained market entrants, which is required for a healthy economy. Without major changes at the PTO on patent review that will introduce some semblance of due process, the IPR process will be illegitimate and inefficiently undermine the patent bargain.”

Neal has been a thoughtful and persuasive commentator on patent issues for some time. In this post, the last in a three-part series Neal makes specific recommendations that make good sense. Many universities affiliated with state institutions believe that they need worry no longer because of the 11th Amendment sovereign immunity issue. But at present, we know neither the amendment’s reach nor its stability. IPR has become a regular tool in the infringement defense attorney’s tool box. Freeing some universities from its abusive process is not enough to restore sanity to the patent landscape. Patents’ presumption of validity is being ignored.

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