To Big Tech and many other large corporations, predatory patent infringement is good for business. They find it is simpler to steal a patent owner’s idea than it is to license and pay to use the invention. They know how to take advantage of their greater financial and legal resources and weakened patent laws to drag out legal proceedings until small inventors give up or go under.
To further undermine patent rights, these Big Tech companies have promoted a story about so-called “Patent Trolls” that has obfuscated the real issues plaguing the patent system. They have perpetuated the notion that patent litigation is out of control and the patent system is being over-run by bad actors who are maliciously suing innocent users of technology for patent infringement. In fact, the patent litigation rate has remained virtually constant – hovering around 1.5% – for decades. The Patent Troll story is false, but it has big money behind it. By spreading this false narrative, they have found support in the courts and in Congress for changes and rulings that have weakened patent rights – and inventors’ ability to protect their patented innovations.
Why has Big Tech been funding this campaign to make patent holders out to be the bad guys under the false narrative of Patent Trolls?
The USPTO’s Patent Trial and Appeal Board (PTAB), created in 2011, was intended to provide a cost-effective alternative to district court litigation for resolving patent disputes. Instead, the PTAB process is being abused by Big Tech and other large companies who use the administrative body to attack the patents of smaller innovators, so they can use their inventions without paying licensing fees.
The PTAB has invalidated 84% of the patents it has reviewed – far higher than the invalidation rate in district court – which led a former Federal Circuit Court Chief Judge to describe the PTAB as a “death squad” for killing property rights.
It’s not just Big Tech that’s using the PTAB to attack the patents of smaller innovators. In addition to the U.S. tech giants, the top 20 PTAB users include China-based ZTE and Huawei, who have filed more than 280 petitions before the PTAB attempting to invalidate the patents on technology they are infringing.
For more facts about patents, head over to the Innovation Alliance website to read Patents: Myths vs. Facts.
The weakening of the U.S. patent system, which has been instrumental to our country’s growth and economic strength, has given an opening to our biggest economic competitor, China. The United States has fallen in key rankings of global innovation – falling out of the top ten in Bloomberg’s Innovation Index and in key indicators of innovation tracked by the Information Technology & Innovation Foundation (ITIF). And a leading security think tank recently reported that China is now leading the U.S. in the development of 37 of 44 critical emerging technologies.
Meanwhile, China has moved in the opposite direction on patents, modifying its system to complement government-funded efforts and incentivize its own innovators in its quest to overtake the United States as the world’s leading technological innovator. As a national commission wrote in a recent report: “China is poised to ‘fill the void’ left by weakened U.S. IP protections, particularly for patents, as the U.S. has lost its comparative advantage in securing stable and effective property rights in new technological innovation.”