A Big Tech Legislative Putsch Against Innovators


By Andrew Langer


Lawmakers are billing bipartisan legislation recently introduced on Capitol Hill as a compromise peace agreement in the ongoing policy war between startup innovators and Big Tech behemoths. In truth, however, the Patent Trial and Appeal Board Reform Act would lock in a massive victory for Big Tech.

Big Tech firms have increasingly tried to poach smaller rivals' technologies rather than licensing those ideas and paying royalties. Small inventors have fought back by suing in federal court for patent infringement. Many times, they've been completely vindicated and won big judgments.

Big Tech executives obviously don't enjoy paying out huge judgements, but neither are they willing to pay licensing fees if they can get away with helping themselves to the inventions of others. So they lobbied their allies in Congress to create a quasi-judicial body within the U.S. Patent and Trademark Office with authority to review and invalidate patents.

Lawmakers designed the Patent Trial and Appeal Board, the body in question, to operate in a way that favors Big Tech and other companies challenging the validity of existing patents on technicalities. The PTAB has at least partially invalidated 84% of patents in the cases it has reviewed and ruled on.

In theory, the PTAB is supposed to create a quicker avenue for challenges to patents that are so vague, they should never have been granted in the first place.

But in practice, Big Tech firms have weaponized the PTAB, filing repeated challenges in a desperate race to strike down their smaller rivals' patents -- before those patent holders can win their infringement lawsuits in court.

To rein in this abuse, the USPTO put new safeguards in place in 2018-2020. Most notably, the so-called Fintiv principles give the agency the flexibility not to initiate a PTAB review in certain circumstances, such as when the patent in question is already subject to ongoing litigation in federal courts.

This makes sense. Letting PTAB hear such challenges while companies are already duking it out in court would force inventors to defend against Big Tech's massively bankrolled assaults in two separate theaters. It's akin to double jeopardy.

Big Tech executives and their lobbyists have complained bitterly over the Fintiv principles, claiming it limits their ability to challenge "low-quality" patents.

There's scant evidence to support Big Tech's claims that the United States faces a growing epidemic of faulty patents. The rate of patent challenges has remained steady for a century: just 0.2% of patents approved by the USPTO are ultimately disputed.

USPTO's adoption of the Fintiv principles provided the reform PTAB urgently needed. So now Big Tech is looking to Congress to reverse Fintiv legislatively with the ironically named PTAB Reform Act. Doing so would reopen the floodgates to new patent-invalidation attempts before PTAB.

The "reform" legislation throws a few bones to the small inventors hauled before PTAB, calling for USPTO to pay for their legal representation before the board, at least in some cases. But its real purpose is to wedge the door open permanently for multiple duplicative patent challenges.

That's just what Big Tech wants. Lawmakers should reject this bogus compromise and let the Fintiv principles stand.

Andrew Langer is Chairman of the Institute for Regulatory Analysis and Engagement, a non-partisan, academic public policy organization dedicated to assessing the impacts of proposed rules and other regulatory proceedings on individual economic sectors and the U.S. economy as a whole. This piece originally appeared in Issues & Insights.



More Resources


01/10/2025
Carter Funeral Brings Rare, Needed Vision of Peace


more info


01/10/2025
Three More Biden Deceptions
The president can believe what he wants to believe, and at this point, there appears to be no convincing him otherwise.

more info


01/10/2025
A Nation Suffers Whiplash Between Biden and Trump
On any other day this might seem strange

more info


01/10/2025
Biden Admin Told Us To Censor True Info


more info


01/10/2025
Facebook Admits Error--'Fact Checkers' Still Complicit
Mark Zuckerberg seems to want to reverse Facebook's censorship efforts, but those publications that participated in the program are complicit.

more info


01/10/2025
In Defense of DEI
DEI refers to three simple but important words: diversity, equity and inclusion. These three values are indispensable

more info


01/10/2025
Woke Religion Burned People's Homes to the Ground
The wildfire devastation of Los Angeles occurred largely as a result of people in power adhering blindly and madly to a very bad religion.

more info


01/10/2025
LA's Poor Communication Should Have Residents Fuming


more info


01/10/2025
Republican Party's New Ground Game


more info


01/10/2025
Opening the DNC's Black Box
Why we're publishing a previously undisclosed list of all 448 members of the Democratic National Committee

more info


01/10/2025
The Most Under-Reported Story About Biden
What was the most under-reported news story during the Biden presidency? In the last week or so, there has been a sudden burst of recognition of the extent to which Democrats and the media worked together to cover up Biden's progressing cognitive decline. One media figure after another has com

more info


01/10/2025
Biden Is No Carter
In terms of character the 46th president doesn't come close to matching the 39th.

more info


01/10/2025
Biden Says He Could've Beaten Trump. That's Delusional
Not only is Biden overestimating his political skills, he's also ungraciously insulting his vice president.

more info


01/10/2025
Dresden in Los Angeles and Our Confederacy of Dunces
LA is burning. And the derelict people responsible are worried that they are found out as charlatans and empty suits.

more info


01/10/2025
The L.A. Apocalypse Was Entirely Predictable
Today on TAP: The hills above my hometown regularly catch fire, and developers regularly build there nonetheless.

more info



Custom Search

More Politics Articles:

Related Articles

Should U.S. Energy Independence Be Based Only on Renewable Energy?


Last March President Donald Trump issued an executive order "promoting energy independence and economic growth." While he specifically included "renewable sources," he clearly intended to unleash the nation's massive fossil fuel resources, which is the only conceivable way to achieve energy independence —at least for the foreseeable future.

Trump's Monthly Box of Food for Our Poor


Back in the seventies my dad brought some delicious cheese home from our local town. "They were giving this cheese out in front of the courthouse so I picked some up" he said. The cheese was all part of the so called fight against poverty. My dad was a hard-working coal mining man so we had food to eat.

Guns, Opioids, Alcohol, Bad Judgment and Balance


Every person in America should have the privilege of driving a car if they meet the qualifications. Requirements involve passing written and driving tests and passing a vision test. Enough incidents of driving violations or driving impaired can certainly curtail and even eliminate our privilege to drive an automobile.

Easter - America Needs a Good Story


Americans are waiting and hoping. We're hoping for something and we aren't exactly for sure what we are hoping for. Internally it's always the hopes of something better around the corner.

AMAC calls for Repeal of the Medicare Anti-Kickback Safe Harbor Statute


The Association of Mature American Citizens [AMAC] has issued a call for its members and other concerned seniors to press their lawmakers, on both sides of the aisle, to repeal the Medicare Anti-Kickback Safe Harbor Statute.

Gas and Oil Re-Invest Tax Windfall


President Trump's recent tax overhaul has American CEOs feeling generous. Walmart and American Airlines are among the big companies giving employees bonuses of up to $1,000 each; Lockheed Martin is putting an additional $5 million toward employee pensions, and Cigna is upping its hourly minimum wage to $16.

Secretary Perry's Coal Bailout Is a Raw Deal for Taxpayers


An independent government agency saved Americans from a massive de facto tax hike.

Russian Trolls are Pitting Americans Against Energy Industry


According to a March report from the House Science, Space and Technology Committee, Russian trolls are trying to disrupt U.S. energy markets.

"Speech Police" Roam America's College Campuses


A German woman who survived the holocaust says it's reminiscent of the Nazis

Colorado's "Half-Baked" Decision Nixed by the Supreme Court


At the U.S. Supreme Court on Monday, Justice Anthony Kennedy delivered a long-awaited opinion concerning Jack Phillips, the Christian baker who owns Masterpiece Cakeshop located in Lakewood, Colorado, west of Denver. Kennedy and the court ruled in favor of Phillips, 7-2.

The Free Market Is Curing Blindness


The FDA recently approved a revolutionary drug that could restore sight to 2,000 nearly-blind Americans.

Blockchain Could Save Federal Agencies Billions


It's hard to misplace $800 million. Yet the Pentagon recently did. The Defense Logistics Agency, which manages military construction projects, lost track of enough money to fill two tractor trailers with $20 bills, according to an internal audit leaked in February.

Strengthen Patents to Boost Family Businesses


Which company is more innovative? A corporate giant, or a family-owned business?

Branson Duck Boat Ride — Bad Judgment


I've thought about taking a Duck boat ride and I'm glad I passed.

Animal Lovers Should Be Cheering For Animal Research — Not Opposing It.


Scientists just discovered a drug that could save millions of dogs -- and humans -- from cancer. Veterinarians at Tufts University administered the experimental treatment to Dover, a 7-year old dog suffering from lymphoma. The cancer had caused him to go blind, and his days were numbered. In desperation, Dover's owner enrolled him in a clinical trial testing the early-stage therapy.

Global Leaders Dither While Disease Races to Latin America


You're nearly twice as likely to die from colon cancer living in a Latin American country than you are living in the United States.

Trump Claims He's Defending U.S. Companies — But Businesses Disagree


This summer, President Trump imposed a 25-percent tariff on $34 billion of Chinese goods. The move follows his June levies on steel and aluminum from Canada, Mexico, and Europe.

Right to Try Provides a License to Cash In on Patient Fears


More than 1.7 million Americans will be diagnosed with cancer this year. One in three of those patients will eventually succumb to it.

Marching for Life: Countering Roe V. Wade's Escorts


I saw them again a few weeks ago, the first time in a while. My wife and I were driving by. They stood outside the Planned Parenthood clinic in Pittsburgh. "Look," I said to my wife, "those are the so-called 'escorts.' They lead young women into the abortion clinic. Look at their smiles as they do their job."

Medicare for All Means Medicare for No One: Cautionary Tales from Abroad


Cheryl Gilarski has had enough health problems to last a lifetime.