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USPTO Weakens Important Program for Fighting Patent Abuse

Arlington, VA – October 11, 2018 – 
The following statement is attributed to Michael Petricone, SVP, government and regulatory affairs, Consumer Technology Association (CTA) and Evan Engstrom, executive director, Engine, regarding the United States Patent and Trademark Office’s (USPTO) final rule changing the claim construction standard for Patent Trial and Appeal Board (PTAB) reviews:

“PTAB reviews offer a critical way for innovators and entrepreneurs to fight back against abuse from patent trolls. Unfortunately, the USPTO has taken a step backward and weakened that review process. By eliminating the Broadest Reasonable Interpretation (BRI) standard, which was previously used in these reviews, the USPTO has made it easier for bad actors to preserve their low-quality patents.  Keeping low-quality patents on the market harms the entire patent system and permits patent trolls to continue extorting American businesses.

“A strong patent system needs strong review proceedings – but the USPTO rushed this rule and didn’t fully consider how it would damage our innovation economy and judicial efficiency, and increase patent abuse. This change is contrary to a century of judicial precedent and congressional intent, and will limit the ability of innovators to use the PTAB as a viable alternative to expensive patent litigation.”

Background: Earlier this year, the USPTO proposed a rule to change the standard, known as BRI, by which patents are evaluated during PTAB reviews. The review programs administered by the PTAB offer a way to challenge the validity of a patent. CTA and Engine filed joint comments opposing the USPTO’s proposed rule.  On Wednesday, USPTO announced a final rule that does away with the BRI standard in favor of a more restrictive alternative.