Some very relevant context from a HN comment:
This is a bad proposed rule that should be killed, to be sure. But this article is missing the context about why the Patent Office claims to think this is necessary in the first place. Patent trolls of a sort are setting up shop on the other side of where you would normally expect them in litigation, attempting to use the Inter Partes Review process in ways that look very much like an abuse of the system. For example, one company opened an IPR against a valuable patent and then offered to withdraw it for money. It was rightly called out as a shakedown.
https://www.jdsupra.com/legalnews/director-vidal-removes-ope…
https://news.bloomberglaw.com/ip-law/opensky-abuse-sanctions…
The US legal system generally requires parties to have standing before they can make use of courts or pseudo-courts like the PTAB. Situations like this make it clear why: when lots of money is on the line people will try to “hack” the system in ways that its designers didn’t expect. Uniquely open processes like IPR are vulnerable to exploitation in a way that is annoying to lawyers compared with what they’re used to, so they reflexively reach to reimpose standing requirements. That’s basically what is being proposed here.
Again, the above doesn’t mean I think this rule change should go forward: the IPR process and its openness are incredibly valuable and should be retained. but it’s misleading to portray this proposed rule as arbitrary or corrupt.
Because we don’t have enough patent trolls already, I guess.
The author seems to have defined all patents owned by patent trolls as “bad patents” while in reality a bad patent is one that should not have been granted in the first place. Patent trolls definitely own “good patents” as well and don’t realize any advantage by purposely seeking out invalid patents to enforce.
Otherwise, interesting that the office seems to believe the number of IPRs requiring determination are too high? Wonder how relevant the post-covid backlog was to this decision
