Note to Congress: Resist Big Tech Pleas to Weaken Strong Patents in Light of Recent Losses

“It would be tragic for the massive damage awards we are seeing in patent litigation over the last year to lead to a complete capitulation of American innovation by Congress.”

In recent days, both Google and Apple have lost big patent cases. On August 13, Apple lost a $300 million jury verdict to PanOptis. Also on August 13, Google was found to infringe five Sonos patents at the International Trade Commission (ITC) in an initial determination by Judge Charles E. Bullock, which, if upheld by the full Commission, would block the importation of Google hardware, including Chromecast and Pixels.

Two immediate thoughts come to mind.

First, this likely means that Apple, Google and their big tech allies will use these instances, as well as other recent high-profile patent losses, as evidence of the need for yet more innovation-crippling patent reform. That would be a huge mistake for America at a time when we find ourselves locked in a race for technological supremacy with the Chinese.

“I’ll tell you who doesn’t think we have bad patents in the United States,” said Chris Israel, current Executive Director of The Alliance of U.S. Startups for Inventors and Jobs, during a recent IPWatchdog Webinar, “it is the Chinese. They in fact think we have very good patents and trade secrets and intellectual property, and they are in a 24/7 [race] to take that from us.” Israel, no stranger to international intellectual property enforcement, previously served in the Bush White House as the first U.S. International Intellectual Property Enforcement Coordinator, a position commonly referred to as the IP Czar.

The second thought— it’s about time!


Fifteen Years of Hammering at Patents

The entire premise for the creation of the Patent Trial and Appeal Board (PTAB) with passage of the America Invents Act (AIA) in 2011 was that there were “bad patents” that needed to be invalidated in a quicker, cheaper, streamlined process. Everyone familiar with the procedures as they have been implemented over the last decade understand the PTAB has not lived up to the quicker, cheaper, more streamlined goal, instead adding a layer of review, expense and multiple years to virtually every dispute. What the PTAB has has been very efficient at is invalidating patent claims, often killing entire patents and even entire patent families.

With a tribunal and appellate structure biased toward finding “bad patents” and rooting them out, it is hardly surprising that the PTAB panels found what they were looking for and complied. As the saying goes, when you are a hammer, the world appears to be a nail, and patent owners unfortunate enough to have their patent claims instituted for challenge by the PTAB have been hammered repeatedly by the Board. The Federal Circuit has given cursory review, at best, to any decision invalidating claims, while saving its rigorous scrutiny for those appeals where the patent owner managed to have claims escape the grasps of inter partes review (IPR).

Once upon a time, it was quite difficult to defeat a patent. Over the last 15 years, it has become increasingly easy to defeat patents for a multitude of reasons, as the tide has turned away from innovators. Factor in the Supreme Court’s decision to change more than three decades of what constitutes an obvious invention in KSR v. Teleflex, 550 U.S. 398 (2007); the Supreme Court’s decision to change more than three decades of what constitutes a patent eligible invention (See Bilski v. Kappos, 561 U.S. 593 (2010), Mayo Collaborative Services v. Prometheus Labs., 132 S.Ct. 1289 (2012), Association for Molecular Pathology v. Myriad Genetics, 133 S.Ct. 2017 (2013), Alice Corp. v. CLS Bank, 134 S.Ct. 2347 (2014)); and the creation of the PTAB in 2011, and patents are harder to obtain and much easier to challenge. The answer was clear— file better patent applications.

Stronger Than Ever

The message was received loud and clear by patent practitioners, so it is hardly surprising that 15 years into this misguided patent experiment, the patents that the big tech companies are facing are stronger, becoming harder to invalidate and read directly on the most valuable products and services they provide. It was always a matter of time before those patents left standing would be the ones that we were told for so long the patent system should demand— good patents, well written, with narrowly tailored claims. So, what will be the response of Apple, Google and the other big tech companies? Where will we go from here?

“Optis makes no products,” said Apple spokesperson Josh Rosenstock in an e-mail to Reuters. Of course, Apple doesn’t make anything either. Instead, Apple innovates and then has manufacturing facilities in China and elsewhere around the world make products that are shipped back into the United States. This rhetoric has worked before, even though these big companies outsource their supply chain without regard to American workers and have built their lasting empires on the technologies they have managed to take from others without compensation.

Don’t Capitulate

It would be tragic for the massive damages awards we are seeing in patent litigation over the last year to lead to a complete capitulation of American innovation by Congress as they double and triple down on patent reform aimed at excusing a handful of big infringers from taking without paying.



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Join the Discussion

11 comments so far.

  • [Avatar for concerned]
    August 24, 2021 06:30 am


    Even the sub prime perversion had it’s day of reckoning. Everyone deep down knew it was a scam, lending to straw men with no means of repaying the note, yet nobody of consequence wanted to say publicly the truth.

    A person may get suckered, and everyone may get suckered, but everyone cannot get suckered forever per some circus guy a few years back.

    So have your fun now and the nation will have to come back from the ashes, just like the sub prime scam.

  • [Avatar for Zete4vr]
    August 20, 2021 06:46 pm

    The weak are meat the strong do eat.

  • [Avatar for NewLawSchoolGrad]
    August 20, 2021 04:35 pm

    Gene – kuddos for being ahead of the (spin) curve on this one.

    At some point, the market (in the case of patents- court awards in lieu of license negotiations) had to recognize the quality (and cost!) of the few patents that emerged from the killing fields of the PTAB, Alice & EBay over the past 15 years.

    I would expect “many” more $1 Billion+ awards to issue this year as these (relatively few) patents make their way though the gauntlet intact.

    I hope Congress does not fall for the inevitable “woe is me” narrative pitched to them be Big Tech, and that it remains time to pay the (inventive!) piper…

  • [Avatar for jacek]
    August 19, 2021 03:39 pm

    Word after word can not agree more with one exception. The language used.
    “They have managed to take from others without compensation.”
    Why do we normalize amoral and criminal behavior by not using appropriate expressions like:
    “Theft” or “They have managed to steal from others.”
    or “Supreme Court endorsed theft by E-bay,” etc.
    I think a change of expression is long past due.
    (Big Tech introducing a fairy tale about “Patent Trolls,” understood the power of direct expression well.}
    Otherwise, theft and other criminal behaviors seem as normal, acceptable parts of reality.
    They are not. By any standards. At least the criteria in the rest of the world outside of the US.
    By the way. Are we all aware of the 10th anniversary of the 2011 AIA act? September 16, 2011
    Maybe YOU should take part in the Inventors rally?
    Look for info at

  • [Avatar for PTO-indentured]
    August 19, 2021 02:39 pm

    Not the Judge @1 Excellent of not also scathing Tell it like it is PDF

    Thank You!

  • [Avatar for PTO-indentured]
    August 19, 2021 11:26 am

    USPTO, AIA and Courts:
    We giveth (pre-grant) and we taketh away (post-grant).

    Pre-grant — get a patent family for five-figures
    Post-grant — watch that family get annihilated under one or more seven-figure assault(s)

    Oh, and maybe with little to no explanation will also throw in — you owe costs!

    Everybody sing: It’s a small efficient infringer’s world after all … it’s a small, small world.

  • [Avatar for B]
    August 19, 2021 10:09 am

    @ Gene

    FYI, I wrote a SCOTUS amicus for a firm that formally did patent work for a well-known (but unnamed) big tech company. The amicus was not for the big tech company. Anyway, the primary attorney mentioned his disappointment about the big tech company making it big using their patents but then later trying to “pull the ladder up after” them after the company made it big but realizing that patents protect other people.

    BTW, despite my well-known attitude to Alice-Mayo, I am a big fan of KSR, and indeed Alice Corp. could have been handled under KSR w/o violating the Constitution. Programming a well-known business method into a computer with nothing more? Heck, I think Diehr could have been invalidated under 103 given the prior art available at the time.

    Quality patents take a lot of work. Invalidating bad patents can take a lot of work.

  • [Avatar for Concerned]
    August 19, 2021 07:50 am

    Bravo! Well written as usual.

    The USPTO and their PTAB are also great at not rewarding patents on the front end even when nobody has ever used the process, both sides admit a long sought solution occurred and that the process meets the law as wrote by Congress per PTAB.

    The rejections change like the wind as the applicant defuses the rejections one by one.

  • [Avatar for mike]
    August 18, 2021 09:23 pm

    “The answer was clear— file better patent applications.”

    That’s easier said than done, especially when patent law has now been swallowed post Alice, despite what SCOTUS warned. I mean, when the CAFC says an improved camera and garage door opener are abstract ideas and possess nothing significantly more, despite the fact that they can cause a black eye if thrown at your face, then we can’t even say up is down and down is up. We are all just flipping coins on what words mean.

    But I could be wrong. Perhaps the black eye could be an improvement, so long as said camera and garage door opener aren’t being used merely as a conventional tool, but used in some new and unique way (whatever that means).

  • [Avatar for Pro Say]
    Pro Say
    August 18, 2021 07:01 pm

    “Apple doesn’t make anything either”


    . . . but they’re masters . . . at stealing from others and pulling the wool over the eyes of Congress and the Biden administration.


  • [Avatar for Not the Judge]
    Not the Judge
    August 18, 2021 06:44 pm

    Judge Michel has written an excellent law review article that details the decline of the U.S. patent system.

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