5 years on, the America Invents Act still cleans up our patent system
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For the past five years, American entrepreneurs and consumers have reaped the benefits of an unnoticed, but valuable piece of legislation: the America Invents Act (AIA). While no one was looking, the AIA’s programs have been steadily cleaning up America’s patent system, getting rid of low quality patents and fueling innovation and growth across the U.S. While not the flashiest piece of legislation, the AIA is creating a better environment for American inventors  — one less threatened by patent trolls.

When passed in 2011, the AIA became the first major overhaul of our patent system in almost 60 years — a historic feat in its own right. The AIA’s widespread support among policymakers and industry alike was based on a shared understanding that a patent system rooted in quality and conducive to 21st century innovation was indispensable to our global competitiveness.


Perhaps most importantly, the AIA offered new opportunities to improve patent quality through post grant review procedures. These new processes, such as inter partes review (IPR) offer the chance for experts to review the patent claims granted by the Patent and Trademark Office (PTO) and determine if they meet the necessary legal standards to have been granted in the first place. These processes are faster and cheaper than litigation, making them more accessible to the small businesses and entrepreneurs that lack the immense resources often required to fight patent trolls in the courtroom.

In only a few years, IPR has made significant strides in improving patent quality, making it harder for patent trolls to take advantage of low quality patents to stymie entrepreneurs.

IPR is crucial to innovation and growth. Once a low quality patent is granted, it doesn’t sit idle in the system; low quality patents fuel patent trolls, allowing them to assert broad or vague claims against productive businesses in technology, retail, and other everyday industries that our economy depends upon. Wasteful litigation means fewer resources available for research and development of new products and services. Low quality patents and the threat they present also create vast uncertainty to businesses across sectors, discouraging new innovation and hampering our economy.

Despite its importance, critics of the AIA, and IPR in particular, hope to weaken standards and make it harder to clean up patents that need another look. Opponents of IPR have unreasonably labeled it a “death squad” for patents, pointing to the process’s high rate of overturning patents as evidence of the system’s failure and the threat it allegedly presents to inventors nationwide.

But the numbers tell a different story, one of success. The Patent Trial and Appeal Board (PTAB), holds patent challengers to a very high legal standard for a case to even proceed — only about half of all challenges actually proceed. PTAB requires anyone challenging a patent to present their entire case up front, before a review can even start, and they won’t even take up a case unless it’s likely that a patent claim should be found invalid.

This gate-check protects patent holders from being harassed. It also means that IPR’s overturn rate is actually demonstrative of the process’s success, because it narrows cases to only the most likely claims needing a second look.

In addition, courts have found that IPR issues quality opinions. Higher courts have only overturned about seven percent of cases going through IPR. The Supreme Court also recently upheld certain PTAB standards in a recent case.

Bottom line: IPR isn’t killing patents, it’s cleaning up patent claims that should’ve never been issued in the first place. This ensures that productive businesses aren’t deterred from creating products and services that advance our economy and society.

As we celebrate the fifth birthday of the AIA, we must remember that there is no silver bullet that will stop patent trolls and the harm they bring to our economy. In addition to Congress enacting strong litigation reforms, we need to maintain the USPTO’s ability to take a second look at its work through IPR and weed out low quality patent claims. We also need to continue to work on processes at USPTO that can prevent low quality patents from being instituted in the first place, including through the Enhanced Patent Quality Initiative and new ideas on workforce management.

Ellen Schrantz is the director of government affairs and counsel of the Internet Association.

The views expressed by contributors are their own and not the views of The Hill.