Patently Strategic: Patent Wars – Innovators, Revolutionaries, and the Race to Reform

Nearly two decades worth of Federal Circuit and Supreme Court rulings have thrown the patent system into disarray and weakened patent rights for inventors. Subject matter eligibility is a confused, chaotic mess – leaving even the Federal Circuit Chief Justice at a loss on how to determine eligibility. The muddied state of invention enablement puts at risk the software innovations fueling economic growth and the key life science innovations that can save lives. Court interventions on injunctions have made it all but impossible for patent owners to stop others from using their property rights without permission, turning predatory infringement into an efficient business model. This already perfect storm was compounded by an act of Congress a decade ago that inadvertently created a patent killing machine that has weaponized the patent office against inventors. This has all been bolstered domestically by the deep pocketed marketing and lobbying campaigns of a big tech industry that is now destroying the ladder it once climbed up on. Amplifying the threats within and heightening the sense of urgency for solutions, international exploitation in an undeclared cold war has led to one of the greatest wealth transfers in human history – and begs the existential question of who is going to develop the technologies of tomorrow.

Revolutionaries on Reform

Over the course of the past couple of months, Dr. Ashley Sloat and I had the opportunity and honor to host conversations with thought leaders across the patent world. Working from their insights, this episode explores the biggest problems plaguing patenting and how those problems impact the innovation economy that so very tightly depends on strong, predictable, and reliable patents. Building on that understanding, we work toward getting a more complete view of the legislative, judicial, and educational solutions needed to get back to the gold standard patent system. In doing so, we not only talk with our guests about their support for the proposed solutions on the table, but we also explore the strongest criticisms.

We’ve done so with the help of distinguished industry heavyweights who are currently deep in the trenches of these issues – and working tirelessly toward their solutions. Our guests include:

  • Judge Paul Michel – Former Chief Justice of the nation’s top patent court, who stepped down from his position to be able to speak freely on these problems.
  • Professor Adam Mossoff – Simply one of the most brilliant minds in intellectual property law, whose research is regularly leaned on by Congress, the Federal Circuit, and Supreme Court on all things patent law and innovation policy.
  • Randy Landreneau – President of US Inventor, the largest inventor advocacy group in the country, a group that has worked diligently to push through legislation and administrative changes to protect inventors and innovative startups.

Our guests have been exceptionally generous with their time. We recorded over six and a half hours’ worth of interviews! Recognizing that we want to reach as many people with this as possible and time is always precious, we’ve woven highlights from these conversations together into a single episode. Typically, we only do one episode per month, but given the quality of these conversations and the value in the unique perspectives of each guest, following publication of this condensed episode, we will be releasing the full-length interviews in weekly installments for anyone who’d like to go deeper.

Solutions to the Surface

The problems are many and the stakes couldn’t be higher, but hope is far from lost! With the help of our guests who are working relentlessly toward undoing the evisceration of our patent system, we explore the virtues and viabilities of a wide array of potential solutions to the biggest problems plaguing patenting:

  • Eligibility. This hallmark of the U.S. patent system and key enabler of economic success has been under attack by the judicial system. We examine the recently introduced Patent Eligibility Restoration Act and how it hopes to fix the eligibility mess. Our guests also carefully analyze the bill’s language and potential for side effects, weighing in particularly on concerns regarding the use of “non-technological”, the potential to make software unpatentable subject matter, the risk of reintroducing pathogen patents, and whether or not the bill would overrule the Bilski, Myriad, Mayo, and Alice (aka the “Four Horsemen of the Innovation Apocalypse”) decisions that gave rise to the judicially created eligibility exceptions.
  • Enablement. The other half of the distorted judicial puzzle that is having a devastating impact, especially to life science and pharma patents. We discuss upcoming SCOTUS cases like Amgen v. Sanofi that could help or hurt the present confusion around the ability to patent critical, lifesaving innovations.
  • Predatory Infringement. The America Invents Act (AIA) and its most unfortunate progeny, the Patent Trial and Appeal Board (PTAB), have resulted in an 84% invalidation rate and the death of thousands of valid patents at the hands of infringers looking to profit from innovations they didn’t invest in to create. This infringement story is worsened by another SCOTUS decision that made it nearly impossible to stop infringers from making, using, and selling pirated inventions. We explore two pieces of legislation that have been designed to tackle these problems, but each in its own unique way: The STRONGER Patents Act and the Restoring America’s Leadership in Innovation (RALI) Act. While exploring the pros and cons of each, we also consider how a bridge might successfully be built from one to the other.
  • Patent Troll Mythology. Every good narrative needs a convincing villain. Big Tech’s patent troll narrative has been one of the most well funded and successful misinformation campaigns in history. It created the moral panic that predicates so many of the judicially and legislatively manufactured issues we discuss. Debunking this myth is at the core of meaningful reform. We discuss its genesis and how it formed the basis of congressional action for the AIA and PTAB.
  • Patent Pending Indefinitely. A patent is a constitutionally created property right and is often compared to a title deed like we might have on our home and other pieces of property. At present, this seems like a very broken metaphor. The PTAB’s invalidation rates are jaw-dropping, but studies have shown that even district courts invalidate patents at an alarming rate of about 40%. We discussed with our guests what it would take to get to a point where the determination by the PTO was closer to something binding, with invalidations being an extremely rare exception in any context. This includes talk of a Gold-Plated Patent System as well as how Selection Effect impacts court invalidation rates.
  • Undeclared Cold War. A system void of any competition can operate internally however it wants and sometimes still end up ok. Many experts are beginning to argue, however, that there’s a real sense of urgency in addressing these internal problems because of the rapidly escalating external threat that is China’s undeclared cold war. We examine Congressional attention to the evolving problem of China going from a country that steals technology to a country that is successfully replicating the parts of the US system that worked so well for centuries – and what the national security implications would be for letting an authoritarian regime, one that’s actively engaged in human rights violations, define and build the technologies of tomorrow.
  • Quality Patents. As long as this is the world we live in, as inventors and practitioners, we cannot settle for anything less than quality when it comes to our patents. We have to focus on minimizing surface area for these sorts of challenges. We close out the episode by providing some practical tips for creating the highest quality patents we can under the circumstances.

The Innovation Race 

We’ve been wanting to do a patent reform focused episode like this for a long time, particularly since we covered US Inventor’s 2021 Decade of Stolen Dreams rallies with our American Inventor Horror Story episode – it was then that we truly witnessed firsthand just how devastating the America Invents Act and the PTAB have been for inventors. Flash forward a couple of years to present, and the makers of a new documentary entitled, “The Innovation Race” reached out to us to screen their film.

With bipartisan interviews with folks like Senator Chris Coons from Delaware and Representative Thomas Massie from Kentucky, combined with a myriad of inventors, judges, generals, law professors, and policy experts, several of whom you’ll hear from in this episode, the movie breaks down this systematic erosion of intellectual property rights and explains the imminent economic and national security threats of China exploiting these weaknesses in US patent protection. You can find options for streaming and learn more at The end of the film, which touches on solutions, provides a launching point for our discussion today.

Going Deeper on the Issues

We’ve covered these issues extensively in past episodes and our expert panels have provided very practical tips and strategies for dealing with the world as it exists. Check out the following to learn more:




Warning & Disclaimer: The pages, articles and comments on do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of

Join the Discussion

7 comments so far.

  • [Avatar for jacek]
    April 7, 2023 02:29 pm

    The so called GOLD STANDARD was based on simplicity, accessibility and low cost. Even if the GOLD STANDARD from 2011 is going be “restored” we will still be in 19 century comparing to other nations.

    Who can afford $30-40k for a lawyer just to write a patent application?

    If US will have ever chance to catch up in this area there must be a real reform not only patent law but the US unaffordable justice system.

    Why I can abroad have “Industrial Design Registration” in few days for real low cost and in the US they are going kill me with fees wait time and separate design patent applications for each of up to 100 designs I can register through “Industrial Design Registration”
    If 96 other nations agreed to honor WIPO “Industrial Design Registration” but the US what it tells you?

    Nobody here holds the HOLY GRAIL

    We all here live in the provincial world of the US, already divorced from external reality.

  • [Avatar for Anon]
    April 7, 2023 08:00 am

    Mr. Grantham,

    Another excellent conversation (based in large part on your willingness to engage).

    Thank you for that.

    Let’s focus on your second RFC.

    If you have a direct link, that would be most appreciated – apologies for my not searching for it directly at the moment, given that I am traveling.

    Much like over at that other blog (a comment of mine appears to be delayed this morning), you appear to be making a fundamental error of wanting to insert your much more professional viewpoint in place of what the Office has deigned as sufficient under the law.

    This is what I take from your comment of, “I defined a patentability search and explained how the expert searcher selects references that apply to features of the invention. At the end of the process you will have 8-12 articles of evidence where every reference is applicable to the inventions features. This is the only job that private sector searchers have.

    Your definition – while of value in the larger scope of reality – is simply not in accord with the law and the legal definitions as currently employed both by the Office and the Courts.

    Your statement of, “Examiners keyword search for something to apply to the pending claims and stop when they find something they can use. Searching this way means you miss a lot of features.” resonates deeply with me.

    As I note in my other comment, I have LONG advocated that this type of ‘search’ does NOT actually comport with the law as CURRENTLY written by Congress. I believe that we have had this discussion before and I would respectfully remind you that THAT:

    One has not only 37 CFR 1.01 Nature of Examination (“On taking up an application for examination…, the examiner shall make a thorough study…”

    But also has:
    — MPEP 2163.06 Relationship of Written Description Requirement to New Matter,
    — MPEP 2173.06 Practice Compact Prosecution,
    — MPEP 2660 First Office Action, not to mention
    — MPEP 904.03 Conducting the Search

    It is abundantly clear that keyword searching does not meet these edicts.

    This is less about changing anything to bring about your “My comments are only about enhancing the evidentiary function… and more about simply enforcing the law (and Rule – 37 CFR) that already exists.

    As I mentioned – and one reason perhaps why we two generally have civil conversations – is that I concur with you in regards to, “… a subject that has evaded discussion since patent reform got started in 2002 with the 21st century strategic plan.

    Lastly, while I agree with the direct statement of, “Cancelling PTAB will not cause the PTO to issue reliable patents.” I think that THAT misses the larger point that the PTAB was – and is – based on a false premise to begin with, and only makes matters WORSE.

    From my own (prior to law) professional context, I have shared that the AIA’s PTAB ‘quality fix’ is entirely misguided – comparing it to a post production filed warranty program NOT tethered to taking any lessons learned from fixing warranty items and changing and improving the actual manufacturing process that generates the issues found through a warranty program.

    What is worse is that the Executive Branch administrative agency government bureaucracy is actually REWARDED by ignoring any “lessons learned” capability of a Warranty program in that the fee structure as is augments BOTH ends pitched to high gear. The direct perverse result is the Office (writ large to include both examination and post grant review activities) BENEFITS itself with p00r (and quick and ‘per internal metrics’) examination so that those self-same internally declared “record-breaking quality examined” patents are overturned at a frightening level BY THE SAME AGENCY.

  • [Avatar for Josh Sloat]
    Josh Sloat
    April 6, 2023 01:08 pm

    Thanks, Pro Say. We really appreciate the feedback. We honestly couldn’t think of a better or more important use of the platform. And couldn’t agree more – we need to start thinking about our kids and the world we’re leaving them. The decisions that need to be made (or present lack thereof) have very long tails and we cannot afford to be any more reactionary than we’ve already been. The issues we took on here are all very independently complex, but all culminate together with highly related consequences. We couldn’t find anything else out there that brought a more complete picture together, so this was our attempt to help aggregate, simplify (as much as possible), and unite the biggest problems with their most promising solutions. Couldn’t have done it, though, without our incredible guests, their brilliant insights that help cut through the fog, and for all of the important work they’re doing with a diligence beyond compare! We hope this can help move the conversation forward, if even just a little.

  • [Avatar for Robert Grantham]
    Robert Grantham
    April 5, 2023 01:55 pm


    Thanks for asking.

    I submitted to two PTO RFCs in January. The first was directed to the possible establishment of a new Design bar (paper #48), the second, to Robustness and Reliability of Patent Rights (#97).

    Both essays argued that search expertise exists in the private sector. I defined a patentability search and explained how the expert searcher selects references that apply to features of the invention. At the end of the process you will have 8-12 articles of evidence where every reference is applicable to the inventions features. This is the only job that private sector searchers have.

    A public sector searcher does not conduct patentability searches. Examiners keyword search for something to apply to the pending claims and stop when they find something they can use. Searching this way means you miss a lot of features.

    A piece of evidence that discloses multiple features is strong compared to a document that discloses one feature.

    Every single overturned patent (either in court or in an IPR) represents a private sector searcher finding evidence not found by the public sector searcher. Examiners search part time. Their main responsibility is learning patent law.

    I proposed two things. 1. Applicant incentives. Patent applicants should have the option of securing their own search using private sector skills and be reward by the Office for doing so. 2. Instead of a Design credential which is not in demand, I proposed a mid-level credential centered around the evidentiary function because this is where patent quality/reliability is judged.

    I do not disagree with anything at all that Michel, Mossoff, of Landreneau say about the deleterious affects of the AIA. I agree with everything they say on all the issues.

    My comments are only about enhancing the evidentiary function a subject that has evaded discussion since patent reform got started in 2002 with the 21st century strategic plan. Cancelling PTAB will not cause the PTO to issue reliable patents.

  • [Avatar for Anon]
    April 3, 2023 07:15 pm

    Mr. Grantham,

    To your comment of,

    or is recognizing that the US system has no policy focusing on the evidence

    What did you have in mind?

    Terms like “strong” and “weak” are themselves weak, as you may be confusing the painful indicators as “merely weak” when the problem is reflected in the rest of the article.

    What are you considering “strong,” and are those considerations separate from what the (again) rest of the article provide?

  • [Avatar for Pro Say]
    Pro Say
    April 3, 2023 05:39 pm

    Thank you Josh, Ashley, and your excellent guests.

    This is a true tour-de-force that every U.S. Senator, Representative, and President should read and listen to.

    Otherwise, Communist China’s drive for innovation hedgemony will — no later than 2030 if nothing is done — become the World’s new reality.

    Is that the World you want your children and grandchildren to inherit and live in?

    There’s no time to waste, Congress. No time to waste.

    Kick Big Tech, their high-paid lobbyists, and other patent-haters out of your offices.

    Our formally gold-standard patent system must be restored before it’s too late.

    You could do it — and before this year’s over — with with one bill.

    Just. One. Bill.

  • [Avatar for Robert Grantham]
    Robert Grantham
    April 3, 2023 12:25 pm

    I have a quick question for all.

    Is the answer to unreliable patent quality “to focus on minimizing surface area for these sorts of challenges” as the authors state or is recognizing that the US system has no policy focusing on the evidence.

    The PTO fails to find strong evidence during prosecution, as standard operating procedure, thereby issuing weak patents. Weak patents are vulnerable to strong evidence.