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SCOTUS to Review Validity of Patent 'Death Squads'

By Jonathan R. Tung, Esq. | Last updated on

The nation's highest court is scheduled to scrutinize what a former federal judge ominously labeled as patent 'death squads,' referring to the Patent Trial and Appeal Board as set out by President Obama's 2011 America Invents Act. Several years' worth of hindsight has left many with a sour taste in their mouths about how effective the Act was.

It is predicted that companies that benefit the most from the system (large, well monied tech companies such as Google and Apple) will interject and argue vociferously for the PTAB's efficacy.

"Death Squads"

What prompted to former federal appellate Judge Randal Rader to make such an incendiary comparison to genocide? It's the aimed policy of encouraging patent innovation, but in fact arguably stifling it. Bloomberg Business, in citing arguments made by the pharmaceuticals, states that PTAB invalidates approximately 90 percent of the cases brought before it, in contrast to only just over 40 percent of cases brought in to federal court. In other words, if you want to bring a challenge, don't bring it before a PTAB administrative judge if you can help it.

"Plain Meaning" Versus "Broadest Reasonable Meaning"

Silicon Valley tech companies -- laden with patents -- view PTAB favorably as a mechanism to lessen litigation costs by bypassing obviating litigation entirely. There is opposing opinion on the other side that claims fears of rampant patent invalidation is actually far overblown.

One of the legal issues before SCOTUS to review is the standard of review currently employed by the board. The board's default setting is to employ the review standard used by the USPTO -- to read a petition in the "broadest reasonable meaning." With this, a patent can cover many reasonable processes and inventions already registered. Thus, a new patent would not and cannot be claimed to cover anything new.

Opponents argue that PTAB should instead adopt the standard currently employed by federal courts (the standard used by courts which account for the 42 percent invalidation ruling rate). Doing so would perhaps bring the execution rate of the "death squads" more in line with federal courts, and discourage patent "forum shopping."

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