Several startups and smaller tech companies have joined over 50 others—from automakers to telecommunications firms—in letters to Congress expressing concern about the increasing use of discretionary denials which leave invalid patents in force.
The United States Patent and Trademark Office (“USPTO”) has taken recent steps to weaken inter partes review (“IPR”), an important tool for improving patent quality. The USPTO has compromised IPR by increasingly exercising discretion to deny such reviews, which has in turn allowed invalid patents to remain in force and be litigated at significant costs.
The letters, sent last week and signed by companies such as Bitmovin, GitHub, Patreon, and Mapbox, echo concerns Engine and other coalitions raised earlier this summer. As the companies note in their letters, the recent trend in IPR denials harms patent quality and allows for patent trolls to target firms during an especially precarious economic period.
The USPTO’s “failure to consider and cancel invalid patents is one of the primary causes of the significant increase in litigation by non-practicing entities in recent months,” the companies told lawmakers. “Especially given the painful economic downturn due to the COVID-19 pandemic, we believe that Congress and the rest of the federal government should be doing everything within their power to prevent unnecessary and abusive litigation against U.S. companies and employers.”
The companies also note that USPTO’s actions “are contrary to the promise of the America Invents Act,” which established IPR in 2011 “to provide an alternative to costly court litigation to determine patent validity by enabling the USPTO to correct its own errors.”
In order to address the problem, including an increase in litigation by patent trolls in recent months, the companies urge Congress to investigate the USPTO’s practices and policies to ensure that the AIA is being effectively implemented.
You can read the letters to the House and Senate Judiciary committees here.
