The PTAB's Problem?
20 Pages Posted: 31 May 2019 Last revised: 12 May 2020
Date Written: May 9, 2019
To date, concerns raised to the very existence of the Patent Trial and Appeal Board (PTAB) are largely unpersuasive. However, underlying these concerns may be a more legitimate problem – ex post patent invalidation undermines reliance interests of patent owners that never would have developed if the patent had been rejected as unpatenable during ex ante patent examination. This is a potential problem of ex post patent invalidation generally, not the PTAB specifically, but has become more apparent as the PTAB has made ex post invalidation more common. The extent, source, and consequences of such reliance costs are questionable and require much more exploration and evaluation. These issues, however, would be a better focus for debates over the optimality of the PTAB generally, and its design choices specifically, than existing arguments focused on constitutional power, the PTAB’s absolute invalidity rate, and supposed procedural bias. They also may be relevant to on-going debates about whether it would be rational to expend more resources on ex ante patent examination.
Keywords: patent, PTAB, reliance interest, rational ignorance, intellectual property
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