Ensuring that the Patent Trial and Appeal Board is a truly fair and impartial forum

As the chairman and ranking member of the Senate Judiciary Committee Subcommittee on Intellectual Property (IP), we believe in the need for strong, reliable, and predictable intellectual property rights. We have both dedicated our careers to being champions for America’s innovative and creative industries. We both know that incentivizing American innovation is vital to the continued prosperity of our country and, specifically, our economic growth.  

In order to ensure America’s continued dominance in all areas of innovation, we must have strong patent rights. However, for our patent rights to truly be strong, they have to be based on high-quality patents, patents that meet all the requirements of patentability, and have undergone a rigorous examination at the Patent and Trademark Office. The Patent Trial and Appeal Board (PTAB) plays a critical role in this process and is a necessary backstop to invalidate truly low-quality patents that do not represent true innovation and never should have been issued. 

There is no question that, fundamentally, we need to improve patent quality. However, while we must continue to improve patent quality, invalid patents have already been issued and need to be addressed on the back end. We feel it is important that those facing lawsuits from patent owners should have the opportunity to raise at least one legitimate, good-faith, and meritorious challenge against patents being asserted against them, without allowing the process to overwhelm patent owners with gamesmanship and strategic litigation, particularly for small businesses and individual inventors. We also want to shore up the process to promote transparency, helping to ensure that the process is fair and accessible to the public. 

While we both support the proper role of the PTAB, we also recognize that in the past, it has been abused by bad actors and has operated in a way that had disadvantaged patent holders and independent inventors alike. We know that reforms are needed to ensure that the PTAB is a truly fair and impartial forum and isn’t simply a place where patent rights go to die. That is why we are working together on a bill that would restore predictability to the inter partes review process, eliminate abuse by bad actors like OpenSky Industries, and ensure there are safeguards in place to prevent gamesmanship and strategic litigation aimed at efficient infringement. The PTAB should provide all parties with consistency and certainty, provide an effective alternative to litigation, and not allow for the harassment of any party. 

In the coming days, we will be releasing draft text of our bill and look forward to receiving stakeholder feedback from all corners. This is the beginning of a conversation, and we are committed to working with the public and all interested stakeholders on this matter. We are optimistic about building a bipartisan coalition to help address all of these concerns. We are confident that we can craft a compromise that will allow inventors to continue to do what they do best – to innovate and ensure that America remains the world’s global IP leader. 

Patrick Leahy is chairman of the Senate Judiciary Committee Subcommittee on Intellectual Property. Thom Tillis is ranking member of the Senate Judiciary Committee Subcommittee on Intellectual Property.