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PublishedDecember 4, 2023

Study Confirms That PREVAIL Act, Patent Office ANPRM Proposals Will Hurt the Economy

A study from the Perryman Group – an economic and financial analysis firm based in Waco, Texas – confirmed that proposals contained in both the United States Patent and Trademark Office’s (USPTO) Advanced Notice for Proposed Rulemaking (ANPRM) and the PREVAIL Act would impose significant costs on the U.S. economy by making it more difficult to challenge invalid patents at the USPTO

According to the analysis, if the proposals go into effect, U.S. business activity will decrease by approximately -$482.1 million in gross product, -$230.4 million in personal income, and -2,000 job-years of employment over the next decade. What’s more, the manufacturing sector would be the hardest hit, with a decrease of -$230.1 million in gross product. 

The Perryman study also points out that restrictions on USPTO review will increase costs for the federal government by reducing tax receipts and raising procurement expenses. The decline in U.S. business activity will reduce tax receipts by -$96.4 million over the next 10 years while simultaneously increasing procurement costs by $106.4 million. This means that, in total, the new proposals represent a $202.9 million cost increase for the federal government.

The economic data speaks for itself, but as we have previously discussed on Patent Progress the proposals are not only economically damaging, they are also overwhelmingly unpopular. An analysis by Unified Patents found that out of the 14,500 comments submitted in response to the USPTO’s ANPRM, more than 95% of all public comments – and nearly 85% of unique comments – oppose some aspect of the proposals. 

The restrictions on patent validity review contained in the ANPRM and PREVAIL Act have no upside. From a policy standpoint, they are extremely costly. Politically, they are wildly unpopular. It’s critical that Director Vidal and leaders in Congress consider the widespread, negative  implications of increasing discretionary denials of patent challenges before proceeding with the proposals that are under consideration. 

Josh Landau

Patent Counsel, CCIA

Joshua Landau is the Patent Counsel at the Computer & Communications Industry Association (CCIA), where he represents and advises the association regarding patent issues.  Mr. Landau joined CCIA from WilmerHale in 2017, where he represented clients in patent litigation, counseling, and prosecution, including trials in both district courts and before the PTAB.

Prior to his time at WilmerHale, Mr. Landau was a Legal Fellow on Senator Al Franken’s Judiciary staff, focusing on privacy and technology issues.  Mr. Landau received his J.D. from Georgetown University Law Center and his B.S.E.E. from the University of Michigan.  Before law school, he spent several years as an automotive engineer, during which time he co-invented technology leading to U.S. Patent No. 6,934,140.

Follow @PatentJosh on Twitter.

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