{"id":5835,"date":"2017-08-16T15:28:11","date_gmt":"2017-08-16T15:28:11","guid":{"rendered":"https:\/\/cpip.gmu.edu\/?p=5835"},"modified":"2026-04-08T20:15:20","modified_gmt":"2026-04-08T20:15:20","slug":"the-ptabs-regulatory-overreach-and-how-this-cripples-innovation-economy","status":"publish","type":"post","link":"https:\/\/blogs.uakron.edu\/ualawip\/2017\/08\/16\/the-ptabs-regulatory-overreach-and-how-this-cripples-innovation-economy\/","title":{"rendered":"[Archived Post] The PTAB\u2019s Regulatory Overreach and How it Cripples the Innovation Economy"},"content":{"rendered":"

On August 14, 2017, the Regulatory Transparency Project<\/a> of the Federalist Society published a new white paper, Crippling the Innovation Economy: Regulatory Overreach at the Patent Office<\/em><\/a>. This white paper examines how an administrative tribunal created in 2011\u2014the Patent Trial and Appeal Board (PTAB)\u2014has become \u201ca prime example regulatory overreach.\u201d Several CPIP scholars are members of the Intellectual Property Working Group in the Regulatory Transparency Project that produced the white paper, including Professors Adam Mossoff<\/a>, Kristen Osenga<\/a>, Erika Lietzan<\/a>, and Mark Schultz<\/a>, and several are listed as co-authors.<\/p>\n

Among the sweeping changes to the U.S. patent system included in the America Invents Act<\/a> (AIA) was the creation of the PTAB, a new administrative body within the U.S. Patent and Trademark Office (USPTO). The PTAB hears petitions challenging already-issued patents as defective. Anyone can file a petition to have a patent declared invalid. The original idea was that this would help to weed out \u201cbad patents,\u201d i.e.<\/em>, patents that should not have been issued in the first place.<\/p>\n

In the past five years, however, it has become clear that the PTAB has become an example of an administrative tribunal that has gone too far. Lacking the proper procedural and substantive restraints that constrain courts and even other agencies in respecting the rights of citizens brought before them, the PTAB is now \u201ckilling large numbers of patents and casting a pall of uncertainty for inventors and investors.\u201d<\/p>\n

In just a few years, the laudable goal of the PTAB in providing a cheaper, faster way to invalidate \u201cbad patents\u201d has led to a situation in which all patents now have a shroud of doubt around them, undermining the stable and effective property rights that serve as the engine of the innovation economy. The former chief judge of the court that hears all patent appeals recently said<\/a> that the PTAB is a \u201cpatent death squad,\u201d and confirming that this is not extreme rhetoric, the first chief judge of the PTAB responded<\/a> to this criticism by embracing it: \u201cIf we weren\u2019t, in part, doing some \u2018death squadding,\u2019 we would not be doing what the [AIA] statute calls on us to do.\u201d<\/p>\n

The white paper briefly discusses the history and purpose of the U.S. patent system and describes the PTAB and how it operates. The substance of the white paper details extensively the procedural and substantive problems in how the PTAB has failed to respect both the basic requirements of the rule of law and the rights of patent owners. The concern is that this undermines the stable and effective platform that patent rights provide as the engine of the innovation economy.<\/p>\n

To read the white paper, please click here<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

On August 14, 2017, the Regulatory Transparency Project of the Federalist Society published a new white paper, Crippling the Innovation Economy: Regulatory Overreach at the Patent Office. This white paper examines how an administrative tribunal created in 2011\u2014the Patent Trial and Appeal Board (PTAB)\u2014has become \u201ca prime example regulatory overreach.\u201d Several CPIP scholars are members […]<\/p>\n","protected":false},"author":3627,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2,26,35],"tags":[83,98,121,516,555,855,922,1070,1100,1177,1217,1527,1563],"class_list":["post-5835","post","type-post","status-publish","format-standard","hentry","category-administrative-agency","category-innovation-2","category-patent-law","tag-adam-mossoff","tag-aia","tag-america-invents-act","tag-erika-lietzan","tag-federalist-society","tag-kristen-osenga","tag-mark-schultz","tag-patent-death-squad","tag-patent-trial-and-appeal-board","tag-ptab","tag-regulatory-overreach","tag-uspto","tag-white-paper"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/5835","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/users\/3627"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/comments?post=5835"}],"version-history":[{"count":2,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/5835\/revisions"}],"predecessor-version":[{"id":16710,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/5835\/revisions\/16710"}],"wp:attachment":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/media?parent=5835"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/categories?post=5835"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/tags?post=5835"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}