Last
week I
wrote
about how
the
US
Patent
and
Trademark
Office
is
pushing
a
rule
change
that
would
effectively
neuter
the
inter
partes
review
(IPR)
system
that
reviews
already
granted
patents
to
make
sure
they
weren’t
granted
by
mistake.
Patent
tolls
and
other
abusers
of
the
patent
system
have
been
screaming
about
this
system
ever
since
it
started
actually
helping
stop
the
flood
of
patent
trolling
over
the
last
decade
and
a
half.
They’ve
now
convinced
the
USPTO
to
change
the
rules
without
congressional
approval.
The
comment
period
for
the
USPTO
to
consider
this
change
closes
today,
so
I
wanted
to
share
the
comment
that
I
submitted
to
the
proceedings
(the
full
PDF
has
footnotes,
which
I’m
not
bothering
to
repost
here):
The
Copia
Institute
is
the
think
tank
arm
of
Floor64,
Inc.,
the
privately-held
California
small
business
behind
Techdirt.com.
As
a
think
tank
the
Copia
Institute
produces
evidence-driven
articles
and
papers
as
well
as
other
forms
of
expressive
output
such
as
podcasts
and
games
that
examine
the
nuances
and
assumptions
underpinning
technology
policy.
Armed
with
its
insights
it
then
regularly
submits
advocacy
instruments
such
as
amicus
briefs
and
regulatory
comments,
such
as
this
one.
We
write
to
oppose
the
US
Patent
&
Trademark
Office’s
proposed
rule
changes
for
inter
partes
review
(IPR)
found
in
Docket
No.
PTO-P-2025-0025.
We
oppose
the
rule
changes
for
three
broad
reasons:
-
The
policy
change
would
directly
oppose
the
reason
and
intent
of
the
patent
system,
doing
real
damage
to
American
innovation. -
The
current
IPR
system,
though
imperfect,
has
been
a
tremendously
helpful
tool
in
stopping
poor
quality
patents
from
limiting
innovation. -
Such
changes
should
only
be
directed
by
Congress,
not
the
agency
The
US
Patent
System
must
guard
against
abuse
Both
James
Madison
and
Thomas
Jefferson
spoke
out
frequently against the
very
idea
of
monopolies,
including
patents.
And
when
it
came
time
to
draft
the
intellectual
property
clause
of
the
Constitution,
there
was
a
discussion
between
the
two
founders.
Jefferson
apparently
worried
about
Madison’s
decision
to
include
patent
monopolies
in
the
Constitution,
writing
to
him
in
1788:
[I]t
is
better
to
…
abolish
…
Monopolies,
in
all
cases,
than
not
to
do
it
in
any
….
The
saying
there
shall
be
no
monopolies
lessens
the
incitements
to
ingenuity,
which
is
spurred
on
by
the
hope
of
a
monopoly
for
a
limited
time,
as
of
14
years;
but the
benefit
even
of
limited
monopolies
is
too
doubtful to
be
opposed
to
that
of
their
general
suppression.
Madison
responded,
agreeing
that
such
things
are
“among
the
greatest
nuisances
in
government,”
but
convinced
Jefferson
that
they
should
not
be
“wholly
renounced”
so
long
as
they
were
very
limited
and
had
safety
valves
to
protect
against
their
abuse.
The
IPR
system
is
just
such
a
safety
valve,
allowing
anyone
to
make
sure
that
patents
that
have
been
granted
truly
deserve
to
be.
Years
later,
Madison
summed
up
his
thoughts
on
patents
by
saying:
Monopolies
though
in
certain
cases
useful
ought
to
be granted
with
caution,
and guarded
with
strictness
against
abuse.
Once
again,
the
IPR
system
is
just
such
a
system
that
helps
guard
against
abuse.
As
both
Jefferson
and
Madison
recognized,
government-granted
monopolies
are
prone
to
abuse
without
strict
systems
to
guard
against
abuse.
As
the
US
learned
in
the
late
90s
and
early
2000s,
our
patent
system
was
being
widely
abused
by
non-practicing
entities,
often
single
lawyers
who
would
buy
up
useless,
overly
broad
patents
that
never
should
have
been
granted,
and
demanding
large
sums
of
money
from
companies
who
were
actually
innovating,
and
actually
building
successful
products.
Congress
recognized
this
problem
and
how
the
system
of
government
granted
monopolies
must
be
“guarded
with
strictness
against
abuse”
and
created
the
current
IPR
system
with
the
America
Invents
Act
in
2011,
creating
the
IPR
process.
The
concept
is
simple
and
straightforward.
Patent
examiners
are
already
overworked,
and
there
is
evidence
that
mistakenly
granted
patents
make
it
through
our
system.
No
system
is
perfect.
So
to
make
sure
that
patents
are
valid,
Congress,
in
its
wisdom
created
a
process
that
enabled
those
who
came
across
an
improperly
granted
patent
to
challenge
it,
and
a
process
to
review
that
patent
to
make
sure
it
should
have
been
granted.
If
the
patents
are
valid,
then
the
IPR
process
reinforces
that,
strengthening
the
quality
of
the
patent.
If
the
patent
is
invalid,
then
the
IPR
process
does
what
Madison
believed
necessary:
strictly
guarding
the
system
against
abuse.
The
system
has
worked
Over
and
over
again,
the
IPR
system
has
successfully
guarded
American
innovators
against
the
abuse
of
government
granted
monopolies.
Over
and
over
again,
patents
that
were
mistakenly
granted,
which
Jefferson
and
Madison
warned
would
limit
innovation,
have
been
successfully
challenged,
and
invalidated,
protecting
actual
innovators
from
having
their
work
halted
by
a
lawyer
holding
a
bad
patent.
A
bad
patent
that
was
used
to
claim
that
all
podcasting
was
infringing
was
thankfully
invalidated
via
the
IPR
process.
Prior
to
that,
many
of
the
top
podcasters
were
sued
or
threatened,
and
some
even
considered
stopping
their
podcasts.
Today,
we’ve
seen
that
podcasts
are
an
essential
part
of
our
media
ecosystem.
They
were
not
actually
invented
by
the
patent
holder.
Indeed,
prior
art
was
found
that
showed
the
claims
in
the
patent
(which
was
about
audio
cassettes,
not
podcasting)
was
predated
in
practice
by
others.
That
patent
never
should
have
been
granted,
and
actual
innovators
in
the
podcasting
space
were
spared
thanks
to
the
IPR
process.
And
this
is
not
a
rare
result.
In
the
first
decade,
patents
reviewed
by
the
PTAB
using
IPR
resulted
in
approximately
40%
of
the
patents
challenged
being
ruled
invalid.
In
other
words,
when
the
USPTO
had
a
chance
to
look
closely
at
those
patents,
and
related
prior
art,
in
many
cases,
they
realized
that
the
patent
never
should
have
been
granted
in
the
first
place,
and
then
corrected
that
mistake.
The
IPR
process
works.
It
fulfills
the
important
function
that
Madison
insisted
any
patent
system
needed:
to
zealously
guard
against
abuse
of
those
monopoly
grants.
Only
Congress
can
change
the
system
Finally,
it
is
important
to
note
that
this
move
by
the
Patent
Office
exceeds
its
authority.
Just
last
year
the
Supreme
Court
made
clear
in
Loper
Bright
v.
Raimondo
that
agencies
cannot
reinterpret
statutes
to
reach
outcomes
Congress
did
not
authorize.
The
America
Invents
Act
created
IPR
with
specific
parameters.
The
proposed
rules
would
fundamentally
alter
that
system—limiting
when
IPR
can
be
used,
forcing
petitioners
to
forfeit
other
legal
rights,
and
making
patents
effectively
unchallengeable
after
a
single
review—changes
that
go
far
beyond
the
USPTO’s
role
in
implementing
the
statute
Congress
actually
passed.
If
the
USPTO
believes
the
IPR
system
needs
this
kind
of
overhaul,
the
proper
path
is
to
ask
Congress
to
amend
the
law.
There
have
been
multiple
bills
proposed
in
Congress
to
restrict
IPR,
and
none
has
passed.
Congress
has
repeatedly
declined
to
make
these
changes
through
legislation.
The
USPTO
cannot
accomplish
through
rulemaking
what
Congress
has
refused
to
do
through
law.
This
alone
should
end
the
discussion.
The
agency
is
attempting
to
rewrite
a
statutory
framework
that
Congress
deliberately
chose
not
to
change,
despite
years
of
lobbying
pressure
to
do
so.
That
is
precisely
the
kind
of
administrative
overreach
that
Loper
Bright
was
meant
to
prevent.
Both
Thomas
Jefferson
and
James
Madison
worried
about
a
patent
system
that
would
be
subject
to
abuses.
Madison
felt
that
the
system
must
be
guarded
carefully
against
such
abuses.
After
seeing
the
harm
those
abuses
created,
Congress
wisely
established
the
IPR
process,
which
has
worked
well
for
over
a
decade.
It
would
be
a
massive
mistake
to
reject
that,
and
return
us
to
a
world
in
which
the
IPR
process
was
limited,
and
abuse
of
the
patent
system
against
actual
innovators
was
rampant.
Please
reject
this
proposed
rule
change
in
order
to
protect
innovation.
Our
Founders
Would
Abhor
What
The
USPTO
Is
Doing
With
The
Patent
System
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