Our Founders Would Abhor What The USPTO Is Doing With The Patent System

from the make-patent-trolls-great-again? dept

Last week I wrote about how the US Patent and Trademark Office is pushing a rule change that would effectively neuter the inter partes review (IPR) system that reviews already granted patents to make sure they weren’t granted by mistake. Patent tolls and other abusers of the patent system have been screaming about this system ever since it started actually helping stop the flood of patent trolling over the last decade and a half. They’ve now convinced the USPTO to change the rules without congressional approval.

The comment period for the USPTO to consider this change closes today, so I wanted to share the comment that I submitted to the proceedings (the full PDF has footnotes, which I’m not bothering to repost here):

The Copia Institute is the think tank arm of Floor64, Inc., the privately-held California small business behind Techdirt.com. As a think tank the Copia Institute produces evidence-driven articles and papers as well as other forms of expressive output such as podcasts and games that examine the nuances and assumptions underpinning technology policy. Armed with its insights it then regularly submits advocacy instruments such as amicus briefs and regulatory comments, such as this one.

We write to oppose the US Patent & Trademark Office’s proposed rule changes for inter partes review (IPR) found in Docket No. PTO-P-2025-0025. We oppose the rule changes for three broad reasons:

1. The policy change would directly oppose the reason and intent of the patent system, doing real damage to American innovation.
2. The current IPR system, though imperfect, has been a tremendously helpful tool in stopping poor quality patents from limiting innovation.
3. Such changes should only be directed by Congress, not the agency

The US Patent System must guard against abuse

Both James Madison and Thomas Jefferson spoke out frequently against the very idea of monopolies, including patents. And when it came time to draft the intellectual property clause of the Constitution, there was a discussion between the two founders. Jefferson apparently worried about Madison’s decision to include patent monopolies in the Constitution, writing to him in 1788:

[I]t is better to … abolish … Monopolies, in all cases, than not to do it in any …. The saying there shall be no monopolies lessens the incitements to ingenuity, which is spurred on by the hope of a monopoly for a limited time, as of 14 years; but the benefit even of limited monopolies is too doubtful to be opposed to that of their general suppression.

Madison responded, agreeing that such things are “among the greatest nuisances in government,” but convinced Jefferson that they should not be “wholly renounced” so long as they were very limited and had safety valves to protect against their abuse.

The IPR system is just such a safety valve, allowing anyone to make sure that patents that have been granted truly deserve to be. Years later, Madison summed up his thoughts on patents by saying:

Monopolies though in certain cases useful ought to be granted with caution, and guarded with strictness against abuse.

Once again, the IPR system is just such a system that helps guard against abuse.

As both Jefferson and Madison recognized, government-granted monopolies are prone to abuse without strict systems to guard against abuse. As the US learned in the late 90s and early 2000s, our patent system was being widely abused by non-practicing entities, often single lawyers who would buy up useless, overly broad patents that never should have been granted, and demanding large sums of money from companies who were actually innovating, and actually building successful products.

Congress recognized this problem and how the system of government granted monopolies must be “guarded with strictness against abuse” and created the current IPR system with the America Invents Act in 2011, creating the IPR process.

The concept is simple and straightforward. Patent examiners are already overworked, and there is evidence that mistakenly granted patents make it through our system. No system is perfect. So to make sure that patents are valid, Congress, in its wisdom created a process that enabled those who came across an improperly granted patent to challenge it, and a process to review that patent to make sure it should have been granted.

If the patents are valid, then the IPR process reinforces that, strengthening the quality of the patent. If the patent is invalid, then the IPR process does what Madison believed necessary: strictly guarding the system against abuse.

The system has worked

Over and over again, the IPR system has successfully guarded American innovators against the abuse of government granted monopolies. Over and over again, patents that were mistakenly granted, which Jefferson and Madison warned would limit innovation, have been successfully challenged, and invalidated, protecting actual innovators from having their work halted by a lawyer holding a bad patent.

A bad patent that was used to claim that all podcasting was infringing was thankfully invalidated via the IPR process. Prior to that, many of the top podcasters were sued or threatened, and some even considered stopping their podcasts. Today, we’ve seen that podcasts are an essential part of our media ecosystem. They were not actually invented by the patent holder. Indeed, prior art was found that showed the claims in the patent (which was about audio cassettes, not podcasting) was predated in practice by others.

That patent never should have been granted, and actual innovators in the podcasting space were spared thanks to the IPR process.

And this is not a rare result. In the first decade, patents reviewed by the PTAB using IPR resulted in approximately 40% of the patents challenged being ruled invalid. In other words, when the USPTO had a chance to look closely at those patents, and related prior art, in many cases, they realized that the patent never should have been granted in the first place, and then corrected that mistake.

The IPR process works. It fulfills the important function that Madison insisted any patent system needed: to zealously guard against abuse of those monopoly grants.

Only Congress can change the system

Finally, it is important to note that this move by the Patent Office exceeds its authority. Just last year the Supreme Court made clear in Loper Bright v. Raimondo that agencies cannot reinterpret statutes to reach outcomes Congress did not authorize. The America Invents Act created IPR with specific parameters. The proposed rules would fundamentally alter that system—limiting when IPR can be used, forcing petitioners to forfeit other legal rights, and making patents effectively unchallengeable after a single review—changes that go far beyond the USPTO’s role in implementing the statute Congress actually passed.

If the USPTO believes the IPR system needs this kind of overhaul, the proper path is to ask Congress to amend the law. There have been multiple bills proposed in Congress to restrict IPR, and none has passed. Congress has repeatedly declined to make these changes through legislation. The USPTO cannot accomplish through rulemaking what Congress has refused to do through law.

This alone should end the discussion. The agency is attempting to rewrite a statutory framework that Congress deliberately chose not to change, despite years of lobbying pressure to do so. That is precisely the kind of administrative overreach that Loper Bright was meant to prevent.

Both Thomas Jefferson and James Madison worried about a patent system that would be subject to abuses. Madison felt that the system must be guarded carefully against such abuses. After seeing the harm those abuses created, Congress wisely established the IPR process, which has worked well for over a decade.

It would be a massive mistake to reject that, and return us to a world in which the IPR process was limited, and abuse of the patent system against actual innovators was rampant.

Please reject this proposed rule change in order to protect innovation.

Filed Under: inter partes review, ipr, patent trolls, patents, uspto