"Johnson and I discuss obviousness determinations built on excessive combinations of prior art, warning that such analyses blur the line between legitimate hindsight reconstruction and genuine innovation assessment. We also highlight a systemic blind spot: nuisance "ankle-biter" assertions that exploit litigation economics while largely evading PTAB scrutiny. These cases have driven much of the political backlash against patents while remaining functionally untouched by the post-grant review process."
"Instead of abstract complaints, Johnson proposes narrowing PGR estoppel to encourage early challenges, moving IPR estoppel to the point of institution to eliminate gamesmanship, separating institution decisions from full merits adjudication to reduce confirmation bias, and rethinking quiet-title concepts to better align notice to implementers with settled expectations of patent owners. The takeaway is clear: the PTAB does not need to be dismantled-but it does need disciplined recalibration if it is to deliver fairness, predictability, and legitimacy going forward."
The PTAB exhibits structural flaws that distort outcomes rather than improve patent quality. Obviousness determinations often rely on excessive combinations of prior art, blurring the line between hindsight reconstruction and genuine innovation assessment. Nuisance "ankle-biter" assertions exploit litigation economics while largely evading PTAB scrutiny, driving political backlash and imposing costs on operating companies and legitimate patent owners. Proposed corrective measures include narrowing PGR estoppel to encourage early challenges, shifting IPR estoppel to the point of institution to prevent gamesmanship, separating institution decisions from merits adjudication to reduce confirmation bias, and rethinking quiet-title concepts to align notice with settled expectations. Disciplined recalibration is necessary to restore fairness, predictability, and legitimacy.
Read at IPWatchdog.com | Patents & Intellectual Property Law
Unable to calculate read time
Collection
[
|
...
]