Congress desires to reform a quasi-judicial tribunal that the massive tech firms have used as a weapon against their smaller competitors. Those big tech firms are rightly concerned that the reform laws will prevent them from stealing technology from smaller firms without compensation after which exhausting the smaller firms with limitless litigation before the tribunal.
The U.S. Congress created the Patent Trial and Appeal Board in 2011 with good intentions. Lawmakers hoped it might be a faster and cheaper forum for resolving disputes over the validity of patents in comparison with federal courts.
Unfortunately, the massive tech firms almost immediately weaponized the tribunal. After infringing the patents of less established competitors, the tech giants repeatedly challenge the underlying validity of those patents before the PTAB—while concurrently raising the identical objections in federal court. They do that to wear down small inventors who typically lack the resources to defend their mental property against an onslaught of parallel and repetitive objections.
To address this problem, Congress has introduced a bipartisan bill called the PREVAIL Act, which might crack down on abusive patent challenges and prohibit duplication of litigation within the PTAB and federal courts.
Opponents claim that PREVAIL will someway increase drug prices by making it easier to defend drug patents and block the introduction of cheaper generics. But considering how few drug patents are even challenged on the PTAB, it’s clear that this argument is only a smokescreen for Big Tech’s real concerns in regards to the law. Moreover, PREVAIL doesn’t prevent a defense to a patent—it just prevents the identical defense from being raised multiple times, which only serves to waste resources and weaken legitimate patents.
Clearly, lobbyists for large tech firms cannot offer any principled basis for defending mental property theft. “Let’s keep stealing, it’s great!” is hardly a convincing argument. Instead, they fight to discredit the reform bill by arguing that it’ll result in higher prescription drug costs.
Fortunately, latest data from the U.S. Patent and Trademark Office, which we each led under Presidents Barack Obama and Donald Trump, disproves this myth. From September 2012 to March 2024, only 3% of all lawsuits before the tribunal involved patents on branded drugs. And only 2% of lawsuits involved patents on biologic drugs.
Simply put, the PTAB is just not a big battleground for drug patents. The overwhelming majority of PTAB challenges involve electronics and computer technology. Strong patents catalyze innovation in virtually all high-tech industries. Lawmakers cannot allow falsehoods to perish. Passing this laws is critical to making sure the U.S. stays competitive in areas similar to artificial intelligence, quantum computing, and engineering. Startups and small firms are sometimes on the forefront of developing such technologies, but they may never succeed if corporate giants can plunder their ideas and intimidate them with repeated litigation in the event that they fight back.
If we allow the U.S. patent system to deteriorate, we risk losing our position as a worldwide technology leader and jeopardizing U.S. economic competitiveness and national security.
PREVAIL would create a level playing field where small businesses have a fighting probability against established industry giants. To defend our geopolitical standing and economic prosperity, Congress should pass it immediately—and ignore false and misleading arguments.
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