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Tuesday, August 9, 2022

OPINION:

Lawmakers are considering a massive handout to corporate America known as the PTAB Reform Act of 2022. If passed, the bill would have disastrous consequences for bootstrap innovators like me, and, in the long run, keep potentially millions of life-changing inventions out of the hands of Americans.

I seldom get involved in politics. I have five daughters, and each day brings a new athletic event to attend or after-school study session to supervise. Yet on top of my motherly duties, I’m a successful “mompreneur” with several patented products designed to make life easier for parents of young children, as well as a line of wearable pepper-spray devices designed to protect girls and women from physical and sexual assault.


I’m proud to say that I personally spent more than a decade designing, marketing and patenting these inventions. It was by no means easy. For every successful sales pitch I made, dozens didn’t work out. And while my success has certainly involved some luck, I learned early on that there’s no substitute for hard work and dedication.

Like most entrepreneurs, I’ve never thought of myself as a lobbyist. But the PTAB Reform Act poses such a dire threat to the livelihoods of entrepreneurs like me that I feel compelled to speak out. This bill would essentially nuke America’s patent system.

The bill’s sponsors — Sens. Patrick Leahy, John Cornyn and Thom Tillis — claim that their legislation “restores the benefits and fairness” that U.S. patent proceedings once had. In reality, the PTAB Reform Act would introduce unnecessary hurdles and implement radical changes that encourage harmful corporate gamesmanship.

Here’s how.

Back in 2012, Congress established what’s known as the Patent Trial and Appeal Board, an administrative panel within the U.S. Patent and Trademark Office. Put simply, the PTAB is responsible for reviewing patents’ validity and striking down overly broad patents that the USPTO shouldn’t have issued in the first place.

The PTAB was supposed to help all inventors by ensuring that “poor quality” patents don’t stand in the way of innovation. Sadly, large companies learned how to leverage their immense resources to game PTAB proceedings for their own benefit.

Crucially, PTAB proceedings were supposed to serve as a speedy alternative to lengthy court battles. But many wealthy corporations insisted on initiating PTAB challenges even when a federal court was on the cusp of a ruling. At one point, the PTAB was partially striking down at least one patented claim in a whopping 84% of the cases in which the board rendered final decisions, thus denying patent owners the chance to defend their intellectual property before a court of law.

PTAB had thus transformed into a quasi-judicial branch used to cudgel small inventors — far from what anyone would call a level playing field.

Thankfully, federal officials responded with a course correction. In 2018, the USPTO began to deny requests for PTAB to review patent validity challenges when parallel proceedings had already commenced in federal district court, giving the board much-needed flexibility and discretion.

This rebalancing of the institutional scales has been a godsend to small innovators, who no longer face the expensive prospect of defending their inventions in court and in front of the PTAB simultaneously. PTAB proceedings can easily cost hundreds of thousands of dollars, and court cases are often even more expensive. Large corporations shouldn’t be able to wear down small inventors by pursuing legal challenges in multiple forums at once.

The PTAB Reform Act would undo much of this progress, effectively forcing the PTAB to hear any patent challenge that has even the slimmest chance of succeeding — even if a court has already stepped in. Not only would entertaining duplicative cases waste the PTAB‘s valuable time and resources, but it would subject small inventors to overwhelming financial and legal pressures. That’s a “reform,” to be sure — but not for the better.

In the end, many of my fellow creators would decide that the effort isn’t worth it. They’d hand their discoveries over to the big companies who attacked them and pursue a new line of work that doesn’t carry the risk of financial ruin. That would be a heartbreaking outcome.

I don’t question the senators’ intentions. I agree with them that the patent system should incentivize innovation to the greatest extent possible. But, sadly, the PTAB Reform Act would do the opposite by convincing inventors and entrepreneurs like me that trying to patent our ideas — no matter how much we believe in them — just isn’t worth the risk.

• Kristi Gorinas is an award-winning designer, inventor, manufacturer and “mompreneur” with several patents and successful products.


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