USPTO Request for Comments on Discretionary Denials

This is important; We need just a few minutes of your support, and time is of the essence. As noted, the USPTO withdrew their pending rule on PTAB discretionary denials and instead filed a "request for comments'' (RFC) at the last minute. But the fight isn't over.

That "request for comments" now has over 100+ comments from U.S. Inventor, pro-assertion groups, and others, including Senator Thom Tillis' Office. This, and the extension of time, suggests that the current USPTO administration is still attempting to inappropriately ram through a last-minute Final Rule before the transition, which they can only really do if the comments are overwhelmingly favorable to codification. 

Our Patent Quality Initiative data shows the USPTO now favors these denials and is increasingly using this rule to deny institution of patent challenges, and the denials primarily benefit litigation-funded NPEs that file in the Eastern or Western Districts of Texas. 

So if you haven't, please file brief supportive comments, which are due by December 3, 2020, 11:59 PM EST.

You can attach or cut and paste the letter below or file a cut-and-paste version of the below.

To file:

Comments may be submitted anonymously---through the USPTO needs to hear as much as possible from stakeholders large and small.

If you would like to discuss, I'm happy to set up a call. Please go ahead and schedule a call on https://calendar.x.ai/jonathanstroud-369, or call 202-805-8931, or e-mail jonathan@unifiedpatents.com and we can find a time to discuss. 

Please join the fight and make sure the USPTO hears from as many individuals and companies as possible, and isn't bowled over by lobbyists supported by NPEs. 

Thanks again,

Jonathan Stroud — Chief IP Counsel, Unified Patents

_Draft language:_

I am from [X company or sector]. I write to note that the PTAB provides a critical tool for protecting us from some of the thousands of over-broad patents that get over-asserted or threatened based on the ability to demand less than the cost of litigation in licensing fees. We are deeply concerned about the increased and seemingly politically motivated use by the Patent Trial and Appeal Board (“PTAB”) of discretionary denials that leave invalid patents in force to be asserted in litigation. Shielding invalid patents from cancellation on policy grounds is the opposite of what the PTAB was created to do. 

Denying challenges for an administration's particular policy goals divorced from the merits means that invalid patents remain in force and must be litigated at significant cost in district court infringement suits. This failure to consider and cancel invalid patents is one of the primary causes of the significant increase in litigation by non-practicing entities in recent months. It is also beyond the statutory authority of the PTAB to craft new rules based on the policy goals of this particular administration. Data shows the USPTO now favors these denials and is increasingly using this rule to deny institution of patent challenges, and the denials primarily benefit litigation-funded NPEs that file in the Eastern or Western Districts of Texas. 

Congress and the rest of the federal government should be doing everything within their power to prevent unnecessary and abusive litigation against U.S. companies and employers, NOT inventing new ways to prevent those threatened with suit from preventing needless litigation. These denials favor the interests of speculative litigation by shell company plaintiffs that do not make anything or productively employ anyone to the detriment of the real-world manufacturers and service providers that are the backbone of the U.S. economy. They encourage parties to file first and forum shop for rocket dockets to maximize their financial leverage to settle spurious claims. These actions harm the economy and are contrary to the promise of the America Invents Act (“AIA”). 

Thank you very much for taking stakeholder's concerns into consideration,

[Name]

_end draft_