The USPTO Must End Repeated and Concerted Patent Attacks

“While the USPTO claims that sequential challenges are not the problem that they have been made out to be, the drumbeat about weak estoppels after a final decision at the PTAB are echoing in the patent-holder community,” wrote Bob Stoll, former Commissioner for Patents at the United States Patent and Trademark Office in an article published on in July 2018. Indeed, that drumbeat continues to grow only louder as the problem of sequential, and multiple challenges, only continues to grow as repeated patent attacks challenging the same claims over and over are becoming a common strategy.

Recently another Petition for Writ of Certiorari was filed with the United States Supreme Court asking the Court to do something about the problem of multiple post issuance challenges against the same patent – even the same patent claims. If the Court takes the case it will clarify the proper role of AIA proceedings within the wider scheme of the patent system and determine whether title to a patent ever quiets, or whether it can be endlessly challenged in a never-ending series of duplicative challenges until the patent owner finally loses all rights. See Supreme Court asked to apply Multiple Proceedings rule to end harassing validity challenges.

“‘One bite at the apple’ is a basic premise of the PTAB,” said Chris Israel, Executive Director of The Alliance for U.S. Startups & Inventors for Jobs (USIJ). “Congress never intended the PTAB to become a tool for large, incumbent corporations to delay and repeatedly attempt to kill a valid patent. But this is what the Board has become.” The ‘PTAB” Israel refers to is the Patent Trial and Appeal Board created by the America Invents Act (AIA) to administer the newly created post-issuance challenge proceedings at the USPTO.