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Skip to main content. Watchdog Anti-Malware Watchdog Anti-Malware is a second-layer, second-opinion cloud-based multi-engine malware scanner designed to protect your computer from malware that your primary anti-virus misses. Finally, patent holders have limited power in settlements when IPRs risk extinguishing all rights. Historically, patent validity has been adjudicated in common law in Article III courts.
Patents have been treated as private property rights between private parties. Further, in many cases, patent validity and infringement are determined by juries as finders of fact. The courts employ a set of procedures that are intended to level the playing field between the parties. For example, patents are no longer presumed to be valid in the PTAB. The PTAB applies a set of rules for review of patents that are clearly antagonistic to patent holder rights as reflected in the extraordinarily high invalidation rates.
The public rights doctrine provides an exception to the traditional federal district court review of some types of disputes. Originally conceived to supply a separate forum for adjudicating disputes involving the U.
However, there are critical conditions that are required in order for the public rights exception to remain legitimate. These conditions include consent, due process and Article III court review. Consequently, the notion of patent validity review in an Article I tribunal is unconstitutional.
It should be clear that the issue of the proper forum for patent validity review involves vital issues of the separation of powers. Since the legislative branch is susceptive to political influence and to large corporation commercial influence, Congress must be constrained from making laws that exhibit the exercise of arbitrary power that destroys the rights and liberties of individuals. Without these constraints, there would be a takeover of government by commercial interests to establish government sponsored mechanisms for corporate self-interest.
These commercial influences are common in developing countries. Given these separation of power issues, it is important to recognize the independence of the judiciary from outside influence in its ability to adjudicate matters between private parties. In addition, it is important to recognize the critical value of the jury system to resolve controversies in common law. These core features of an independent judiciary and jury system are essential for applying due process elements embedded in the Constitution.
The evidence shows that about half of IPRs are instituted by a small group of large technology companies. This reveals a bias of IPRs towards an oligopoly of tech companies, with antitrust implications.
IPRs have emerged as a tool to attack market entrants and to manipulate markets by driving up costs and driving down returns. In the name of patent quality, Congress has empowered an executive agency to impose an involuntary tax on innovation and simultaneously enables free riding for infringers.
Ultimately, it will be shown that PTAB has vastly worse patent validity review results than federal district courts because of a blatant disregard for due process. One key issue is that Congress initiated the IPR protocol by adopting the myth of poor patent quality without sufficient evidence to support the narrative. See also Solomon, N. IPRs have thus emerged as a second-window of patent review placing high burdens on innovators without justification.
The issue could not feature larger economic stakes. The patent system has historically been the foundation for incentives to invest in risky technology.
The patent bargain is disrupted when disclosure of inventions is not rewarded with essential rights. When claims from over half of patents that are enforced are shown to be invalidated, the incentives to invest in technology are substantially diminished.
The stability of the patent system is thus rendered less certain. As the patent system is destabilized, patents are devalued.
IPRs have been a ticket for infringers to artificially devalue patents of rivals. With uncertain rights caused by an asymmetric patent validity review mechanism at the PTAB, infringers are emboldened to hold out and to refuse to deal with patent holders. There is now a perverse incentive for infringers to engage in efficient infringement, ignore patents and wait to be sued. Why engage in a voluntary patent licensing market when an infringer can free ride with impunity?
Infringer hold-out forces patent holders to enforce patent rights in the federal courts, with infringers then filing IPRs to force patent holders to invest substantial sums to defend the patent in an IPR in a time-consuming review in the PTO. Consequently, patent enforcement costs and time to resolution are substantially increased. Dramatically higher costs place a burden on patent holders and represent a substantial regressive tax on innovation.
When patent system reliability is reduced, markets are distorted, with advantages for infringers and high financial costs for patent holders. In fact, IPRs have emerged as an artificial barrier to the patent system that unilaterally benefits infringers, particularly large technology incumbents, at the expense of market entrants.
Since costs are increased, patents are devalued and infringers protected, investments in technology decline. This economic mechanism explains the dramatic decline in business start-ups to a record low as well as the decline of business investment.
The decline in technology business investment explains the dramatic decline of productivity growth in the last six years. The Fed, among others, recognizes that productivity growth declines have been the main cause for the anemic economic growth of the last few years.
Consequently, the IPR regime, naively instituted under the guise of solving a minor problem of poor patent quality, has effectively undermined the growth of the U. Since patents have historically possessed private rights that are adjudicated in federal courts, the paper reviews in part III the traditional processes for patent validity review, including the Seventh Amendment jury trial right.
In part IV, the PTAB procedures are reviewed to show the clear biases against patent holders, the combination of procedures of which reveal a total lack of due process. The argument is then proffered, in part V, that without any of the public rights exception criteria — viz. A prolific inventor of technologies involving semiconductors, communications, data management, imaging, robotics and healthcare, he holds degrees from Reed College and the University of Chicago.
The pages, articles and comments on IPWatchdog. We should all recognize that even if the PTO provided due process in IPRs, the primary reason the big corporations want to move patent validity out of the courts is to keep validity away from juries. I wonder if it is as much about keeping away from juries as it is about the creation of a tribunal that could so easily be influenced.
Under the control of the Director and with no procedural due process requirements afforded both sides in federal court. Gene, I have been giving a lot of thought to this, as you have, over the last several years. Indeed, one move after another seems centered on a desire by the big companies to assure control of the patent system for their exclusive benefit. After devaluing outstanding patents they rush out to the markets, buy a bunch of them cheap, then allow the IPR process to be reversed, restoring IP values and making them easier to defend.
And, when I started saying about 5 or 6 years ago that Google was coming after the patent system. IPRs are not going to get eliminated by accusations that are not clearly proven. Yet only 2 o 3 have been sustained out of all the IPRs in the past 5 years, not even by Fed.