Dear Congress: A Small Request on Behalf of the Innovators You (Theoretically) Repres...
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`January 12th, 2018
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`Dear Congress: A Small Request on Behalf of the Innovators You
`(Theoretically) Represent: Part 2
`Mar 7, 2017 | Blog, Legal | 0 comments
`
`By: Brad Sheafe,
`Chief
`Intellectual
`Property Officer
`
`| U
`
`nless you are
`complying with
`a court order to
`read this blog as
`part of your
`sentence, it’s
`safe to say that
`you are more
`interested than
`most in IP and
`IP-related issues.  And if that’s true, then it is likewise safe to say that you are
`familiar with the “patent trial” regime put in place by the America Invents Act. 
`Given that is likewise true, then you are almost certainly familiar with not only
`with the various forms of said trials, Inter Partes Review (IPR), Post Grant Review
`(PGR) and Covered Business Method Review (CBMR), but also with the dismal
`stats these “trials” have generated from the perspective of patent owners.  I
`won’t bore you with the details, as I presume you already know them and if by
`chance you don’t, a simple and easy Internet search will deluge you with
`everything you could possible want to know, but suffice to say that the Patent
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`http://ipwire.com/stories/dear-congress-small-request-behalf-innovators-theoretically-repre...
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`1/12/2018
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`Voip-Pal Ex. 2077
`IPR2016-01198 and IPR2016-01201
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`

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`Dear Congress: A Small Request on Behalf of the Innovators You (Theoretically) Repres...
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`Page 2 of 5
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`Trial and Appeal Board (PTAB) has more than lived up to its moniker as a “patent
`death squad.”
`
`So, what’s the upshot?  Well, as heavily biased against patent owners as they
`are, at least the PGR is bounded by time from issuance (much like an Opposition
`in European practice) and the CBMR is bounded by the definition of a CBM
`patent (even though the whole concept of a CBM patent was created solely to
`define a subset of property rights – and then strip those rights away) as well as
`the requirement that the challenger must be sued for infringement.
`
`But the IPR has no such limitations.  Sure, the scope of the challenge is narrower
`than a PGR or CBMR, but considering the breadth of sections 102 and 103,
`especially considering that a printed publication includes any publication, made
`available anywhere, in any language, the threat of IPR is enormous.  And given
`that an IPR can be filed anytime against any patent[1] by anyone[2] and that any
`number of IPRs can be filed against the same patent – that threat is interminable
`and the consequences for patent owners is devastating.
`
`Basically, what Congress has said to patent owners is that, as long as they lay
`low and never make a fuss about anyone infringing their patents (which,
`statistically speaking, took years to acquire at the cost of thousands, if not tens
`of thousands of dollars), then those patents will be fine.  BUT, as soon as a
`patent owner has the gall to actually attempt enforcement of their duly issued
`property right, the dogs are loosed in the form of endless threats of patent trials
`until either the claims of the patent are declared void or the patent expires.
`
`Not only is that manifestly unjust, it makes patents themselves a bad business
`bet:  would you spend thousands of dollars to acquire a right in which your title
`is never truly assured and anyone could challenge that title in a demonstrably
`biased forum for as long as you had it, forcing you to spend tens, if not hundreds,
`of thousands of dollars more to defend that title?  I doubt it, but that’s what
`patent owners face today.
`
`To add insult to injury, since anyone can challenge any patent, a cottage
`industry has sprung up around IPRs, whether as a way to short stocks or as a
`classic protection racket, where an IPR is filed and then the patent owner is
`given the choice between settling on odious terms or paying the cost of
`defending the patent against ridiculous odds.  Leave it to Congress to create a
`weapon only a racketeer could love.
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`http://ipwire.com/stories/dear-congress-small-request-behalf-innovators-theoretically-repre...
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`1/12/2018
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`Dear Congress: A Small Request on Behalf of the Innovators You (Theoretically) Repres...
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`According to Congress, IPRs were supposed to be a faster, less expensive
`alternative to litigating the validity of a patent.  OK – against my better
`judgement, I’m willing to give Congress the benefit of the doubt.  If that was
`Congress’ intent, then shouldn’t IPRs only be available when the threat of
`litigation exists?  In other words, shouldn’t one have to be legitimately
`threatened with a patent infringement suit to be able to file an IPR?  Given that
`around 80% of existing IPRs involve underlying litigation, such a change would
`hardly affect the current practice and Congress already knows how to do it –
`they can simply cut and paste from the CBMR statute.  Admittedly, this is far
`from a “fix” for the inequities of the patent trials and the PTAB will continue to
`use the biased rules they created to smugly and arrogantly take back from
`patent owners what their own office granted, and do so for the life any patent. 
`But it will at least prevent otherwise disinterested third parties from using what
`was purported to be an alternative to costly litigation to actually create what is
`effectively…wait for it…costly litigation.
`
`So, what’s not to like, Congress?  In an effort to walk before you run, I’m willing
`to let you slide for now on the inequities of the currently implemented patent
`trials, so IPRs will still exist as an anti-patent alternative to litigation and 80% of
`the current cases would still qualify.  Unless you’re being paid by the racketeer
`lobby (who will no doubt fire up their angry little twitter accounts as well as
`leaving self-serving comments below), how about a little cutting and pasting to
`aid in the process of saving the patent system that used to be the envy of the
`world from your own rash actions?  Doesn’t seem like too much to ask….
`
`[1] Any patent that isn’t subject to a PGR, in which case one would simply have
`to wait until the PGR was concluded – and then, if by some miracle the patent
`survived the PGR, file an IPR on the same patent.
`
`[2] Other than the patent owner, or a party (or real party in interest, or privy)
`who was served with a complaint alleging infringement more than a year earlier.
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`| 10 total views, 1 view today
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`Dear Congress: A Small Request on Behalf of the Innovators You (Theoretically) Repres...
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`Page 4 of 5
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`Dear Congress: A Small Request on Behalf of the Innovators You (Theoretically) Repres...
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`Revisionist history... Ex-USPTO Director Lee Says She Did Not Stack PTAB
`Panels (subs) https://t.co/zeH6lONxX5yesterday
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