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15 “Small businesses and inventors have been under attack by Big Tech and large corporations ever since these corporations realized that the little guys are the biggest threat to their monopolies.”
In April, the United States Patent and Trademark Office (USPTO) requested public input on an Advance Notice of Proposed Rulemaking (ANPRM). The Request for Comments (RFC) allowed the public to voice their opinion on the proposed rules, including hundreds of real, authentic inventors.
In the past, US Inventor has asked its members to use their voices and write comments for the USPTO’s requests. Typically, these requests generate at least 100 responses from USI’s members. This time, USI decided to level the playing field and give its members a chance to speak as loudly as its adversaries. We generated nearly 2,400 real comments from inventors, patent holders and concerned individuals.
US Inventor is the voice of thousands of inventors, small business owners and startups. Inventors only want to create, improve and pursue their dreams. They are generally not experts in law or rules and regulations. But by experience, they know the patent system is broken, and they trust USI’s knowledge and ability to fix it.
USI implemented an AI letter-generator that empowered inventors to have a voice. This AI-powered tool required a One-Time-Passcode (OTP), which is an authentication tool that can only be generated by entering a personal phone number. The phone number then receives a six-digit code which is entered and authenticated in the Letter Generator Link.
This process instantly confirms that the individual attempting to generate a letter is a real, living, breathing person.
But the tool goes one step further. To prevent “spam,” the individual is limited to generating three letters. They also can review the letter for accuracy, edits, additional comments, etc., and they are required to copy and paste the text into the RFC submission page.
The ANPRM RFC allowed inventors to voice their concerns and comments. They have experience as innovators and patent holders, so the credibility of their opinions matters. Their voices cannot be belittled by Big Tech under the guise of a fictional cartoon character.
There Really are That Many Inventors
Over the course of one month, US Inventor consistently sent all of its members an email request for comments. With US Inventor’s size, it is bound to generate many results. While it is easy to ignore the truth and label these individuals as “fake,” ‘” dead,” or “patent trolls,”… there really are that many inventors and individuals who are livid with the broken patent system. Negating these voices only makes the number grow larger.
The Letter-Generator tool alone created 2,374 comments. This number does not include the comments individually written by other members. In total, USI Members submitted roughly 2,400 comments.
The Truth
The loudest voice in the room is not always the right voice in the room. Small businesses and inventors have been under attack by Big Tech and large corporations ever since these corporations realized that the little guys are the biggest threat to their monopolies. The most efficient anti-monopoly is a robust patent system that protects small businesses and inventors’ discoveries.
The 84% of patents canceled after review by the Patent Trial and Appeal Board (PTAB) are not “mistakenly granted patents.” Mistakenly granted patents are not worth stealing from the small inventor; mistakenly granted patents are not commercial successes; mistakenly granted patents are not worth the cost of litigation and attorney fees. There are hundreds of inventor stories where a large corporation stole their invention and, instead of paying licensing fees, used the PTAB to invalidate the patent. These stolen patents are market successes that large corporations decide to profit from. When they are caught, they decide to wipe out the competition entirely by capitalizing on the broken patent system.
Fact: The PTAB invalidates 84% of patents reviewed
Fact: The invalidated patents cannot all be bad patents
Fact: 2,374 real individuals and members of US Inventor are fed up with the broken patent system and generated comments for the ANPRM.
Fact: US Inventor and its members are growing louder than ever before.
If I were Big Tech, I would be scared too.
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Join the Discussion
15 comments so far.
Julie Burke
July 12, 2023 10:28 pmHi Dirk,
Great question. Mistakes do happen and corrections should be possible.
What strikes me odd, is that prior to the AIA/PTAB/IPR death squads, the USPTO had three well-established ways to correct poorly allowed patent applications. The outcomes from each of these processes support the high level of quality for issued US patents.
One is via quality review. MPEP 1308.03. OPQA is staffed by an elite cadre of patent examiners who are technically competent in a wide range of subject matter. OPQA reviews thousands of allowances and rejection each year. Dirk, you are correct to point out that OPQA findings (which are reported to Congress) indicate very high levels of examination quality. OPQA decisions requesting withdrawal of a notice of allowance are carefully vetted within OPQA and then in the TC, typically by the SPE, QAS and Group Director. During my time in TC1600, only a handful of allowances (perhaps 20-30 per year of the thousands issued) are withdrawn by the group director as improper, resulting in ~97% compliance rates.
The second is re-exam, which can be filed by patent owner, a third party or even by the USPTO Commissioner. During my 20 year career, I only heard about a handful of TC1600 patents which underwent commissioner ordered re-exam. About 2004, processing of re-exams was transferred from the TCs to the CRU/RCU. There, they were examined by a triad of technically competent, senior patent examiners. USPTO stats show that 13% of the time, re-examined claims are all cancelled, 20.9% of time, the claims are confirmed as allowable and 66% of the time, the claims are changed via re-exam. Like IPRs, re-exams can be filed by third parties to knock out a competitors patent. Yet why are re-exam stats so wildly different from PTAB IPR stats?
https://www.uspto.gov/sites/default/files/documents/ex_parte_historical_stats_roll_up_21Q1.pdf
The third way issued patent claims can be corrected is via a re-issue application. Reissues have been transferred from the TCs to a unit like the RCU/CRU, where they are processed by a cadre of elite technically competent senior examiners. From a quick look, I haven’t found any statistics on how many patent claims survive the reissue process. Anecdotally, I remember quite high numbers of claims survive the re-issue process and ones which undergo examination and amendment are in better condition as issued US patents.
Let’s now contrast those three well established processes for correcting errors in allowed/issued US patents with the PTAB death squad’s well documented track record.
It is wildly absurd that one side of the USPTO is knocking out such a large proportion of patent claims while other parts of the office (OPQA, CRU/RCU) are approving a large proportion of issued patent claims. Something is clearly amiss and I would suggest we begin by looking into the PTAB APJs qualifications and their performance plan.
For starters, as IPWatchdog has reported thatPTAB APJs are shocking inexperienced as compared to District Court Judges.
https://ipwatchdog.com/2018/03/06/ptab-judges-shockingly-inexperienced/id=94438/
It appears APJs may have less experience (procedural and technical) than the examiners who work at OPQA and CRU/RCU. It seems likely that many Michelle Lee-era hired PTAB APJs who review IPRs have not worked as patent examiners and have not obtained primary signatory authority to issue patents. Technical mis-matches are a concern. I have seen a PTAB decision authored by an APJ with a bachelor’s degree in genetics for an application whose PHOSITA requires at least bachelors in electrical engineering or computer science plus working experience in the imaging field.
Lastly, as Dr. Katznelson eloquently demonstrated, the PTAB APJ’s PAP encourages the death squad activity.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3871108
I support the agency returning to a time where full faith and credit was given to the patent examiner’s determinations and the validity of an issued patent was not to be lightly questioned.
Dirk Tomsin
July 12, 2023 10:32 am@Julie Burke, thank you for commenting.
As a former USPTO Quality Assurance Specialist, what do you think about the synergy between the work of Patent Examiners, and APJ’s, and the high percentage or invalidation rates at the PTAB, and the everlasting narrative of “bad patents”.
Shouldn’t there be more deference to the work Patent Examiners do, especially, given the amount of attention that is spent on patent quality, optimizing patent quality and the enormously high Patent Quality Compliance rate percentages over 90% in the FY performance and accountability reports since 10+ years?
Just curious what your thoughts are.
Anon
July 12, 2023 09:25 amThanks mike – on that point, we agree.
The ‘techdirts’ and ‘slashdots’ of the world have always been pawns of the already established Big Corp (Efficient Infringer) types, even as they attempted to peddle to the crowd of Lemmings how the ability to ‘merely copy’ was somehow a good thing for the rank and file.
mike
July 12, 2023 06:50 am@Anon:
>> “It is as most definitely NOT an aim to force any inventor to have to commercialize their own inventions in order to be able to obtain the fuel of interest.”
Of course. The right secured is a right to exclude others. It doesn’t force an inventor to have to commercialize their own inventions. They can do what they want with that right to exclude others.
My comment is to techdirt’s labeling of US Inventor as a patent troll lobby, which, by Smith’s own definition, doesn’t match the membership that makes up US Inventor — inventors.
Julie Burke
July 11, 2023 10:50 pmThank you, Dirk and Kassidy, for sharing valuable information. US Inventor’s approach is to be applauded. I also support Pro se in urging American inventors to submit their comments directly to the USPTO and to their elected officials.
Numbers matter to that agency knee deep in bean-counting.
As a former USPTO Quality Assurance Specialist, I saw first hand how USPTO leadership weighed comments submitted in response to various FRCs.
A detailed, well reasoned, ten page comment from a bar association, such as IPO or AIPLA, was glibly given the same weight as a one sentence, off the cuff submission from an anonymous entity.
Time to turn the tables.
Anon
July 11, 2023 06:52 pmPaul,
You are no doubt aware that there is a random person using the moniker Anon, and that the long-standing poster of that moniker (me) is not the one that derided the effort as “misinformation.”
(the missive to mike was indeed mine)
Pro Say
July 11, 2023 05:42 pmAs a proud card-carrying member of USI, I applaud their — our — fight to restore our patent system to its former World-leading Gold Standard.
In addition to submitting comments to the Patent Office when requested, I also strongly recommend that each of us send — by Priority or Express Mail — our comments addressed directly to Director Vidal at the Patent Office (with your phone number). Ideally, including a photo of each inventor (and if you’re willing, including you with your family).
Do the same with each of your state Senators and Representatives (in addition to regular phone calls, e-mails, and requests for face-to face meetings).
THAT is the best way to show the powers-that-be that we’re all real, breathing, beleaguered inventors asking only that we be treated as our Nation’s Founders intended . . . and as our Nation is in critical need of.
Working together, our 1,000’s collective voices can overcome Big Tech’s lies and money.
Paul Morinville
July 11, 2023 04:36 pmAnon, US Inventor used its own AI-Powered Letter Generator link that required an OTP for authentication. By using our own site and authentication tool, we were able to retrieve the number of comments generated. To submit a generated comment to the regulations.gov website, it required a two main steps:
1. Generate the comment through USI’s link.
2. Visit the regulations.gov website and submit the generated comment.
By following these two steps, it ensures the authenticity of the individual, while maintaining the integrity of the RFC. We generated 2,374 comments, and we had additional members write their own comments, not using the Letter-generator link.
Per the Regulations.gov website, you can see that there was a total of 14,530 comments submitted and only 2,236 comments posted.
From the Regulations.gov website: “The number of accessible [posted] comments, therefore, may be lower than the total number of comments listed in the card below [submitted]” https://www.regulations.gov/docket/PTO-P-2020-0022
Anon
July 11, 2023 01:01 pm“We generated nearly 2,400 real comments from inventors, patent holders and concerned individuals.” This is wildly, demonstrably false. As of this article’s pub, only 2,300 or so unique comments IN TOTAL had been posted, the vast majority of those NOT from US Inventor-generated comments. These are easy to spot because they contain the same three proposals the organization preselected ALL IN CAPS. This is just misinformation
TFCFM
July 11, 2023 11:12 amIt seems not difficult to imagine that AI tools capable of generating authentic-looking comments which can be used to flood government offices in response to every request for public comment may be the effective end of federal consideration of public comments.
What public servants will (or should) sort through mountains of AI-generated nonsense to try to pick out substantive, meaningful comments?
Anon
July 11, 2023 10:25 amSo, US Inventor admits it used AI to write entire comments from whole cloth in an attempt to get around regulation.gov’s filters? Ok.
Regulation.gov already requires a handshake process to determine that all submitters are unique members of the public. This is just a gloss on the fact that these “inventors” didn’t write their own comments. At a minimum, it calls into question the credibility of any statistics, facts, or arguments the AI made in these comments
Anon
July 11, 2023 09:47 ammike,
One serious pushback against your “fact-check:”
Whether true or not the position that you decry has no actual bearing on the patent clause, and your efforts may even be misconstrued as validating that mere enforcement of an otherwise valid patent (no longer held by an originating inventor) is somehow illicit of its own accord.
This is not only plainly false, but as I have posted previously, is also an insidious attack ON inventors.
One of the bedrock principles to keep in mind is that the grand US experiment absolutely intended the personal property right of a granted patent to be fully alienable.
It is as most definitely NOT an aim to force any inventor to have to commercialize their own inventions in order to be able to obtain the fuel of interest.
This type of ‘rebuttal’ then can — unfortunately — lead to a slippery slope that degrades the full property nature of a patent.
mike
July 11, 2023 06:30 amThis article is excellent. The USPTO must deal with each of the comments from inventors. Those are real people.
This article also links to an article on techdirt, and that article is full of false information.
First, that article calls US Inventor a “Patent Troll Lobby”:
A few folks forwarded me copies of an email they received from “US Inventor” which is, effectively, a lobbying trade group for patent trolls
False.
US Inventor fights for inventors, and an inventor is not a patent troll. Indeed, Lamar Smith of the 2011 Leahy Smith America Invents Act defined “patent troll” when the bill was being debated in the floor of the House of Representatives. This is found in Congressional Record Vol. 157, No 91. On Page H4485, column 3 and continuing on Page H4486, column 1, Smith states:
I want to make it clear that my interpretation of this amendment and its intent is to highlight the problem posed by entities that pose as financial or technological businesses but whose sole purpose is not to create but to sue. I am talking about patent trolls — those entities that vacuum up patents by the hundreds or thousands and whose only innovations occur in the courtroom. — Lamar Smith (TX)
Because inventors do not “vacuum up patents by the hundreds or thousands” and “[innovate only] in the courtroom,” an inventor cannot be a patent troll.
On the contrary, the term “Inventors” can be found as uniquely called out by our founding fathers in Article I, Section 8, Clause 8 in the Constitution. Our founders desired that these “Inventors” be secured the exclusive right to their discoveries.
Second, that article says that patents killed at the PTAB are “bad patents.”
[T]he US Patent Office is seeking comments on a dangerously problematic plan to make it much harder to kill bad patents by reforming the IPR (inter partes review) process[.]”
False.
Mr. Tomsin and Ms. Morinville here correctly state that “The invalidated patents cannot all be bad patents.” To understand this, realize that the overwhelming majority patents are in challenged in IPRs not because they are bad, but because they are valuable. Those patents are valuable enough that the petitioner challenging the patent was commercially successful using the patent without a license. Those patents are valuable enough that a patent owner is willing to put their neck on the line and bring a civil action against another in court for use of the patent. (Doing so frivilously is punished.) Those patents are valuable enough that a legal team decided to stand behind it and defend the right the patent grants to patent owners in court.
This is the reason patents are challenged at the PTAB: not because they are “bad”, but because they are “valuable.”
They are only “bad” to those who don’t want to pay for the right to use the technology.
Anon
July 10, 2023 06:19 pmI will applaud both the article and Lab’s comments.
Lab Jedor
July 10, 2023 06:13 pm“If I were Big Tech, I would be scared too.”
Bravo, US Inventor (USI). I am not sure that Big Tech is scared yet. However, they should be concerned, that’s for sure. The relentless efforts by USI to contact Members of Congress and their successful online weekly meetings that inform and include USI Members in ongoing efforts start paying off.
There is power in numbers. Power that independent inventors previously not had and allowed Big Tech to run rampant and set the tone for the public and political patent debates. That is changing. Keep up the excellent work USI.