Recent Patent Progress posts have focused on the harmful and overlapping policy proposals contained in the USPTO’s Advance Notice of Proposed Rulemaking (ANPRM) and the PREVAIL Act. As it turns out, many others share our concerns.
Last week, Unified Patents released an analysis of the more than 14,500 public comments submitted in response to the ANPRM. The analysis confirms what anyone would conclude from taking just a cursory look through the posted comments – the public overwhelmingly opposes any new restrictions to Patent Trial and Appeal Board (PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA.) review. In fact, more than 95% of all comments submitted and more than 75% of unique comments submitted object to the ANPRM’s proposals.
The PREVAIL Act was introduced just days after the ANPRM public comment period closed and bill sponsors apparently didn’t heed the public’s input. Many of the same types of proposals that appear in the ANPRM – geared toward restricting access to the PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. and making invalid patents more difficult to challenge – are also reflected in the PREVAIL Act. This is perhaps unsurprising, given that PREVAIL is primarily a rebrand of the STRONGER Act, which has been repeatedly introduced, but failed to move, in numerous prior Congresses.
Unified’s analysis summarizes key themes from the public outcry, including that patent trolls are a large concern (more than 70% of all comments mention “patent trolls” or “NPEsNon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it. More”); new PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. standing requirements would harm small- and medium-sized entities; the open-source and pharmaceutical/health tech communities weighed in heavily in opposition to the rules; and the proposals would drive up costs and hurt the economy.
The latter point is emphasized in CCIA’s comment. We note that “the proposals would likely result in significant negative impacts on American innovators. IPRs are a net benefit, reducing deadweight losses by petitioners and patent owners alike, and rules which reduce access to IPRIntellectual Property Rights. Usually associated with formal legal rights such as patent, trademark, and copyright. Intellectual property is a broader term that encompasses knowledge, information, and data considered proprietary whether or not it is formally protected. will also reduce those economic benefits,” adding, “contrary to an instituted IPRIntellectual Property Rights. Usually associated with formal legal rights such as patent, trademark, and copyright. Intellectual property is a broader term that encompasses knowledge, information, and data considered proprietary whether or not it is formally protected. scenario, each discretionary denial creates a deadweight loss of $2.06 million over the status quo ex ante of institution of meritorious petitions.”
Unified’s analysis correctly concludes that the flawed Congressional and USPTOUnited States Patent and Trademark Office. See also PTO. proposals are up against overwhelming opposition. Let’s hope that leaders in Congress and at the USPTOUnited States Patent and Trademark Office. See also PTO. have meant it when they have said stakeholder and public input is crucial. Assessing the comments in their totality could only lead to one conclusion: Both the ANPRM and PREVAIL Act must be abandoned.
