Big Tech's Sticky Fingers Are Still at Work in Washington
By Adam Mossoff
Big Tech is strongly criticized in Congress these days, but it still has sway in Washington when it lobbies Congress to weaken the U.S. patent system. That's bad news for everyone.
Years ago, Big Tech changed its business strategy. Previously, these tech companies would buy or license patent rights to new technologies -- paying for the use of other people's inventions. But now, Big Tech steals these inventions.
This blatantly violates intellectual property laws. But Big Tech has gobs of money to deal with the consequences. So, Big Tech engages in "predatory infringement" because it's cheaper to steal than to respect the law.
Predatory infringement works as a business strategy because Big Tech has lobbied its political allies in Washington to rewrite the patent laws in its favor. A new patent law in 2011 created a special tribunal in the U.S. Patent and Trademark Office whose primary purpose is to invalidate patents. It's called the Patent Trial and Appeal Board, or PTAB.
Given its birth in Big Tech lobbying, the PTAB quickly became a "patent death squad." It invalidates a whopping 84% of at least part of the patents in the cases it decides.
These high kill rates and other procedural shenanigans led to some reform efforts. In 2020, the U.S. Patent and Trademark Office adopted a modest reform to impose some procedural limits on when the PTAB would decide to review patents. Under these so-called "Fintiv factors" -- named after the patent-owner in the Apple v. Fintiv case -- the PTAB may reject a petition challenging a patent if the parties are already litigating in court and the court is close to a final judgment.
So Big Tech went back to Congress to repeat its successful lobbying efforts that first created the PTAB. Senators Patrick Leahy and John Cornyn introduced the "Restoring the America Invents Act" bill that would eliminate the Fintiv factors and expand the PTAB's operations and powers in other ways.
A new version of the bill was just released on June 16. It's now called the "Patent Trial and Appeal Board Reform Act." It still throws out the Fintiv factors and expands the ability of Big Tech to challenge patents at the PTAB in other ways.
If Big Tech wins and either bill is enacted into law, it will represent another blow to the U.S. innovation economy.
Before the PTAB and Big Tech's predatory infringement strategies, reliable patent rights launched the computer and smartphone revolutions. Patents also made possible the biotech revolution with new treatments for diabetes, cancer, and other medical miracles, like mRNA vaccines.
Congress should preserve the patent system and support the U.S. innovation economy, especially when we face increasing challenges from global competitors like China. It's time to say no to Big Tech's continuing political machinations in weakening the patent system.
Adam Mossoff is a patent law expert at George Mason University, and Chair of the Forum for Intellectual Property and a Senior Fellow at the Hudson Institute. This piece originally ran in Issues & Insights.
