Congress wants to reform a quasi-judicial court that Big Tech companies have used to attack their smaller rivals. Those Big Tech companies have reason to worry that the reform will prevent them from stealing technology from smaller companies without compensation and then exhausting the smaller companies with endless legal challenges in court.
Congress created the Patent Trial and Appeal Board in 2011 with good intentions. Lawmakers hoped it would be a faster, cheaper forum for resolving patent validity disputes than federal court.
Unfortunately, big tech companies have almost immediately turned the courts into weapons. After infringing on the patents of lesser-known competitors, big tech companies repeatedly challenge the basic validity of those patents at the PTAB—while simultaneously filing similar challenges in federal court. They do this to undermine small inventors, who often do not have the resources to defend their IP against the onslaught of parallel and repeated challenges.
To address this problem, Congress introduced a bipartisan bill called the PREVAIL Act, which would crack down on abusive patent litigation and prohibit duplicative litigation in the PTAB and federal courts.
Opponents argue that PREVAIL will somehow increase drug prices by making it easier to defend pharmaceutical patents and preventing the introduction of cheaper generics. But given how few drug patents have been challenged at the PTAB, it’s clear that this argument is a workhorse for Big Tech’s real concerns about the bill. What’s more, PREVAIL doesn’t prevent any patent defenses from being filed—it just prevents the same defense from being filed multiple times, which only drains resources and weakens legitimate patents.
Clearly, Big Tech’s lobbyists can’t come up with a principled basis for defending intellectual property theft. “Let’s keep stealing, it’s great!” is hardly a winning argument. So instead, they’re trying to discredit the reform bill by arguing that it will lead to higher prescription drug costs.
Fortunately, new data from the U.S. Patent and Trademark Office, which we served under Presidents Barack Obama and Donald Trump, dispels this myth. From September 2012 to March 2024, only 3% of all court cases involved patents covering branded pharmaceuticals. And only 2% of cases involved patents for biologic drugs.
Simply put, the PTAB is not a major battleground for drug patents. The vast majority of PTAB challenges involve electronics and computer technology. Powerful patents drive innovation in virtually every high-tech industry. Lawmakers cannot afford to let the lie sink in. Passing this law is critical to ensuring the United States remains competitive in areas like artificial intelligence, quantum computing, and engineering. Startups and small companies are often at the forefront of developing such technologies, but they will never succeed if large corporations can hijack their ideas and bully them with repeated lawsuits when they fight back.
If we allow the U.S. patent system to deteriorate, we risk losing our position as a global technology leader, jeopardizing America’s economic competitiveness and national security.
PREVAIL would create a level playing field where small businesses have a fighting chance against the industry giants. To protect our geopolitical standing and economic prosperity, Congress should pass it immediately—and ignore the false and misleading rhetoric.
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