Critics say bill ‘makes it easier’ for patent litigation abuse ‘to thrive’

[December 03, 2024]  By Catrina Barker | The Center Square contributor

(The Center Square) – A U.S. senator from Illinois is touting his role in the advancement of the Promoting and Respecting Economically Vital American Innovation Leadership, or PREVAIL Act. An internet civil liberties group is calling on the nation's elected officials to stand against bad actors, not with them.

The U.S. Senate Judiciary Committee has advanced the bill that proponents say will protect inventors from harassment and unfair challenges to their patents, and keep American innovation at the global forefront.

Illinois U.S. Sen. Dick Durbin, D-Springfield, co-sponsored the PREVAIL Act.

Electronic Frontier Foundation’s Activism Director Jason Kelley is an opponent of the PREVAIL Act.

"Patent troll lawsuits already target individuals and small businesses for simply using everyday technology, and if PREVAIL becomes law, it will make life easier for those patent trolls at every step of the process. It will increase the toll that they demand from small businesses and software developers and everyday people,” said Kelley. “It would basically block most people from asking the Patent and Trademark Office to revoke patents that never should have been granted in the first place.”

U.S. Sen. Ted Cruz, R-Texas, introduced an amendment that would have required the consent of small inventors to participate in Patent Trial and Appeal Board proceedings. Cruz gave the example of a Texas inventor who patented a method of detecting toxic gas leaks only to have the patent invalidated at the PTAB by “a large corporation.”

"Because of the device's success, a large corporation wanted to license the invention. But instead of doing so, it used the PTAB to invalidate David Furry’s patent and simply take the invention. This technology is what is now used in toxic gas leak detection, and it's worth at least $100 million,” said Cruz. “David's gotten nothing from it. It's not fair to David or any other inventor who spent years developing their innovative idea, and more years patenting it for that inventor to be dragged unwittingly into PTAB to fight the invalidity sledgehammer. PREVAIL helps those inventors avoid successive litigation, but it does not help them avoid PTAB’s near-total invalidity sentence.”

Opponents say striking down Cruz’s amendment is proof that PREVAIL is designed to protect the interests of major players in technology and pharmaceutical industries.

Kelley said the government gives out software monopolies via patents in the name of innovation, but the patent office gets it wrong a lot of the time.

"Roughly half of patents litigated to judgment are found invalid, even though the legal standard heavily favors issued patents. One study found that the most heavily litigated patents win in court only 11% of the time,” said Kelley. “Everyone who can meet the legal requirements of an Inter Partes Review filing should have the right to challenge invalid patents, and that's not a right that Congress should be taking away.”

Kelley said PREVAIL will be a giant gift to “patent trolls.” A patent troll is usually a company that uses patent infringement claims to win court judgments to stifle competition.

"It's really disappointing that the Senate would use the few remaining hours it will be in session this year to advance this bill,” said Kelley.

In a statement, a group called United for Patent Reform said bills like PREVAIL reduce the incentive for high quality patents and make it easier for patent litigation abuse to thrive.