When Policy Narratives Override the Facts: A Response to Recent Commentary on My PTAB Case

In a recent Substack post discussing Patent Trial and Appeal Board (PTAB) policy and current U.S. Patent and Trademark Office (USPTO) reforms, former USPTO Deputy Solicitor Thomas Krause referenced my PTAB case as part of his broader argument. Because my case was cited in that discussion, the factual record matters.

The description of my case was wrong. Krause commented that “the old German and French published patent applications seemed to come out of nowhere.” But in my inter partes review (IPR) proceedings:

• No new prior art was discovered.
• The primary reference relied upon by the PTAB (WOLF) had already been cited during prosecution.
• The claims were invalidated on an obviousness theory based on combining prior references and applying hindsight reasoning.

These are not minor details. They go to the heart of the policy debate.

My case does not support the claim that the PTAB primarily exists to correct examiner errors or clean up patents issued over missed prior art. The art was before the examiner. The patents were granted. The invention was commercialized. A U.S.-based manufacturing business was built around those patents, securing licensing partnerships and obtaining an International Trade Commission (ITC) exclusion order.

It was a small American inventor enforcing her own commercially successful invention.

The Structural Issue: Obviousness

The central issue in my case was obviousness, not undiscovered art.

Obviousness asks whether a hypothetical person of ordinary skill in the art (POSITA) would have combined prior references to reach the claimed invention. In practice, that analysis is highly vulnerable to hindsight bias.

Secondary considerations, commercial success, industry praise and long-felt but unsolved need are meant to guard against that bias. My invention achieved commercial success and supported an operating business. Yet those objective indicia did not alter the result.

When no new prior art is found and an examined patent is nevertheless invalidated, the discussion cannot honestly be reduced to “fixing examination mistakes.” The real question is whether obviousness is being applied differently at the PTAB than in district court and why cancellation rates at the PTAB have historically overshadowed invalidation rates in Article III courts.

That imbalance is not accidental. It reflects a systemic difference in how validity is assessed.

Reforms, Examiner Error, and Narrative Tension

Krause has also criticized USPTO Director John Squires and recent reforms involving settled expectations and expanded discretionary denials.

Yet recent information published by US Inventor suggests that of roughly 600 discretionary review decisions in 2025, fewer than 10% involved any apparent examiner issue.

If examiner error appears in such a small percentage of cases, the longstanding narrative that the PTAB primarily functions as an error-correction body becomes difficult to sustain.

Director Squires’ recalibration seeks to restore predictability to issued patents, not to shield weak claims, but to reinforce that examination carries meaning. One may disagree with that effort. But opposing it while simultaneously misstating the facts of a cited case reveals a deeper tension in the argument.

Credibility and Consequence

Former public officials retain influence because their words are presumed to be careful and grounded in fact.

When a former senior USPTO official uses a real inventor’s case to shape national policy debate, accuracy is not optional, it is non-negotiable.

If the factual premise is flawed, the policy conclusion built upon it cannot credibly be sustained.

Patent policy determines whether small manufacturers invest, whether innovators commercialize, and whether examination has durable value. Those decisions should not be driven by compressed narratives that blur materially different cases into a single storyline.

If my case is used to argue that the PTAB primarily corrects bad patents, what confidence should readers have in conclusions built on an inaccurate description of the case? It was not a case of hidden art. It was not an examiner’s oversight. It was a case of hindsight-driven obviousness.

The stakes for American innovation demand nothing less.

When a former senior official misstates the facts of a case while defending the system that produced the outcome, it is reasonable to question whether the narrative is grounded in the facts or in preserving the status quo.