Louis Rossmann has been criticizing the use of copyright to prevent owners of products from repairing them for some time:

Of course, this is all because of copyright.

See also Brian X. Chen, “Why One Man Is Fighting for Our Right to Control Our Garage Door Openers,” New York Times (Dec. 4, 2025), which also cannot be read because copyright protects its paywall.

Related:

• All Quiet on the PTAB Front: USPTO Proposes More Major Restrictions to Inter Partes Review Institution, Patently-O (Oct. 16, 2025)
• Instacart Challenges USPTO’s Discretionary IPR Denials in Seventh Pending Mandamus Petition, Patently-O (Oct. 26, 2025)
• Eileen McDermott, “USPTO Issues NPRM on IPR Practice, Withdraws Vidal-Era Proposal,” IP Watchdog (Oct. 16, 2025)
• Eileen McDermott, Current and Former Lawmakers Lock Horns in Comments on USPTO’s Proposed PTAB Changes, IP Watchdog (Dec. 3, 2025)

Which Path for Patent Challenges? The USPTO’s “One-Challenge” NPRM for Inter Partes Review (Nov. 20, 2025), a recent Federalist Society panel webinar discussing the United States Patent and Trademark Office’s Notice of Proposed Rulemaking (NPRM) titled “Revision to Rules of Practice Before the Patent Trial and Appeal Board,” which proposes significant changes to how inter partes review (IPR) petitions are instituted.

Below I provide the transcript and a summary of the discussion. But a few notes first. First, anything that weakens patent rights or makes patents harder or more expensive to get is a good thing,¹ since the patent system is destructive.² Second, anytime there is any proposed improvement to the patent system—which is very rare—the IP lobby goes apeshit. They do everything in their power to keep any revisions very minor and trivial, to keep the Overton window very small. But no, Radical Patent Reform Is Not on the Way.³

Yes, the courts have swing back and forth on eligible subject matter (software, business methods, and so on), injunctions, and other matters⁴ But as I noted previously:⁵

The only legislative improvements that come to mind are the 1997 limits on the ability to use patents to prevent surgeons from performing surgical procedures patents by other doctors⁶, and an expanded prior commercial user defense in Obama’s 2011 America Invents Act.⁷

As for copyright, the only major legislative improvement that comes to mind is the safe harbor provided to ISPs and platforms by the DMCA.⁸ Otherwise, copyright keeps getting worse: scope expanded (e.g. to cover audio recordings, movies, music, software), term lengthened (from 14 to ~150 years), statutory damages added ($150k per infringing work),⁹ criminal penalties,¹⁰ and so on.

The latest rulemaking proposal by the PTO would make it harder to challenge the validity of patents before a trial, despite Obama’s America Invents Act (AIA) providing for it.¹¹ Under current law, a patentee can sue an alleged infringer in federal court or the ITC. This can cost millions of dollars. And because jurors are morons and the patent system is incomprehensible, jurors give deference to the “technical experts” (PTO examiners) who initially approved the patent and certified that it covered a useful, novel, non-obvious invention (see, e.g., Transcript below at 13:21, 20:05). A granted patented has a presumption of validity, and jurors are reluctant to overrule the patent grant and declare the patent invalid. AIA permits parties worried about being on the receiving end of a patent extortion threat to challenge the patent at the PTO, sort of an appeal of the examiner who issued the patent. This process is useful for patent victims because it is faster, cheaper, and uses technical expert “judges” instead of technically illiterate jurors.

And of course this is why patent shills hate it. That’s what this debate is about. Surprisingly at least two of the panelists, Dave Jones, Executive Director of the High Tech Inventors Alliance, and Joseph Matal of Clear IP, LLC, seemed very critical of the patent system and the harm it poses to innovation. Patent shill and former USPTO director Andrei Iancu kept tut-tutting and saying his opponents should not engage in “hyperbole,” as when Matal rightly pointed out the effects of patents killing companies and innovation (as copyright is doing right now to artificial intelligence [AI]):¹²

You’re going to immunize invalid patents and make it impossible to effectively challenge them. And again, like how many multi-hundred million dollar hits do we want Micron Technology or chipmakers to take? These are big companies, but that’s money they could spend on R&D. And I’ll tell you, some of these very companies have expressed in our private discussions that this is existential for them. If they don’t have access to some way to challenge these cases and the NPE suits they’re facing in Texas, it will eventually run them out of business.

This ain’t hyperbole, Iancu. It’s the unpleasant truth.²

Also intriguing was Jones’s suggestion that a patent owner should only be able to sue one time so that there is only one victim:

So, tell you what, Brian, I’ll trade you one and done on the IPR side for one and done on the litigation side. Patent owners can only bring one case, preferably just against one defendant and then they’re done forever. And they can’t sue anybody. And then we can have one and done on the IPR side. I’d be happy to make that deal.

Me too! This is one suggestion to improve the patent system I have never thought of, though it’s similar to my proposal to cap royalties that a given patent owner can collect:

A variation of this approach would be to set a cap on the total amount of royalties that any one company would have to pay for compulsory patent royalties (at least, for a given product) — for example, 5 percent. Thus, if one is sued by 3 different patentees, at most he has to pay 5 percent royalties on sales. If too many patent vultures hound an innocent businessman, he could simply throw his hands up, deposit his 5 percent royalty with some escrow agent and let them fight it out. (( “Reducing the Cost of IP Law,” Mises Daily (2010); How to Improve Patent, Copyright, and Trademark Law. ))

Of course Iancu and panelist Brian P. O’Shaughnessy, just another patent attorney, trot out the usual old assumptions and bromides.

E.g., Ianco goes on about the glory of jury trials:

Joe, you fundamentally seem to reject the role of juries at least on the validity analysis. But look, the reality is the jury system is fundamental to the American judicial process. It’s in our constitution. It’s there twice. It’s in the body and in the amendments to be frank. And it’s been a core part of our system of laws from the beginning of time. And if you don’t trust the jury system, then we have bigger problems with our judicial system than patent validity challenges.

Of course, the point of juries is to help a court decide facts when doing justice, in deciding a legitimate dispute between parties, in an organic common law system attempting to do justice. Not to interpret arbitrary and unjust legislation and convoluted standards inventive obviousness.¹³

Or this schoolhouse rock stuff by O’Shaughnessy:

And to get back to your earlier question, since the very beginning of this nation, we wrote into our constitution the provision for the patent act. Everybody wants innovation. Doesn’t matter what side of the coin you’re on. Everybody wants innovation. But the fact of the matter is we created with our constitution the first patent act of its kind that had not existed anywhere else in the world with certain limitations that the rights would go only to the inventor for limited times and their exclusive rights only.

And as a result we have become the most innovative nation the world has ever seen and that’s because of our legal regime. It’s not something in the water here in the United States. It’s because we have a predictable, reliable legal regime that protects innovators.

This is the same old correlation-causation mistake. There is no evidence that the framers’ hunch was right. See The Overwhelming Empirical Case Against Patent and Copyright. As economist Fritz Machlup concluded in an exhaustive 1958 study prepared for the U.S. Senate Subcommittee On Patents, Trademarks & Copyrights:

No economist, on the basis of present knowledge, could possibly state with certainty that the patent system, as it now operates, confers a net benefit or a net loss upon society. The best he can do is to state assumptions and make guesses about the extent to which reality corresponds to these assumptions. … If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one.

As I wrote there,

The Founders’ hunch about IP was wrong. Copyright and patent are not necessary for creative or artistic works, invention, and innovation. They do not even encourage it. These monopoly privileges enrich some at the expense of others, distort the market and culture, and impoverish us all.¹⁰ Given the available evidence, anyone who accepts utilitarianism should be opposed to patent and copyright.¹⁴

Summary (Grok)

Event Overview

The Federalist Society hosted a virtual panel titled “Which Path for Patent Challenges: The USPTO’s One-Challenge NPRM for Inter Partes Review.” Moderator Robert Rando (Patrick & Doerr) led a discussion with former USPTO Director Andrei Iancu, High-Tech Inventors Alliance Executive Director David Jones, Clear IP principal and former Acting USPTO Director Joseph Matal, and Dinsmore & Shohl partner Brian O’Shaughnessy.

The NPRM’s Core Goals

Andrei Iancu opened by explaining that the NPRM is designed to (1) give patents a single, definitive validity challenge (“one bite at the apple”) and (2) restore IPRs to their original purpose as a faster, cheaper alternative to district-court litigation. He stressed that the notice-and-comment process is meant to gather public input before final rules are issued.

Strong Criticism from Tech-Sector Representatives

David Jones called the proposal “a mess,” arguing it is contrary to the AIA statute, produces arbitrary results (e.g., blocking IPRs based on non-final or later-reversed decisions), and lacks supporting data or economic analysis. Joseph Matal described the rules as arbitrary restrictions that would cut off access to review even for defendants being sued on invalid patents.

Support for Greater Balance

Brian O’Shaughnessy defended the NPRM as a corrective measure that brings needed balance. He argued that IPRs have become an expensive adjunct to litigation rather than an alternative, and that serial challenges under differing standards undermine quiet title and innovation incentives.

The “One-and-Done” Debate

The panel’s sharpest divide centered on the NPRM’s “one-and-done” provision (barring later challengers if any prior forum has addressed validity). Matal and Jones contended it violates basic due-process principles and could immunize clearly invalid patents. Iancu countered that defendants retain full district-court and ex parte reexamination defenses, and that endless repetitive challenges are the real problem the rules seek to solve.

Jury Competence vs. Technical Expertise

Joseph Matal questioned whether lay juries can reliably decide complex obviousness questions in high-tech cases. Andrei Iancu pushed back, noting the constitutional role of juries and suggesting that if a defendant truly distrusts juries, it should choose the PTAB route exclusively rather than demanding both tracks.

Required Stipulation and Parallel Litigation

The panel examined the NPRM’s requirement that an IPR petitioner stipulate it will not raise §102/103 invalidity arguments in any other forum. O’Shaughnessy saw this as a logical efficiency measure. Jones countered that it effectively forces defendants to give up valid court defenses even when an IPR is later terminated mid-proceeding under the new rules.

Calls for Compromise and Legislation

All panelists agreed the current back-and-forth between administrations creates instability. Iancu and O’Shaughnessy strongly favored a legislative solution (pointing to the PREVAIL Act) for long-term predictability. Matal acknowledged legislation’s superiority but warned that the NPRM, if finalized, would cause immediate, massive harm to operating companies before Congress could act.

Potential Middle-Ground Ideas

David Jones floated a “working requirement” for discretionary denials (only practicing entities or those actively commercializing get the benefit). Brian O’Shaughnessy rejected it as inconsistent with historical U.S. policy against compulsory working requirements.

Closing Consensus

Despite deep disagreements on the NPRM itself, the panelists unanimously urged greater compromise, robust public comment, and ultimately congressional action to provide the stable, predictable patent system that long-term innovation and U.S. manufacturing competitiveness require.

Transcript (Youtube/Grok)

Event Introduction and Welcome

[0:04]

Sarah Clark [0:04]

Hello everyone and welcome to this Federalist Society virtual event. My name is Sarah Clark and I’m assistant director of practice groups with the Federalist Society. Today we’re excited to host this patent forum called “Which Path for Patent Challenges: The USPTO’s One-Challenge NPRM for Inter Partes Review.”

We’re very pleased to welcome our moderator, Robert Rando, who is a partner at Patrick & Doerr, where he brings over three decades of experience in intellectual property law. If you’d like to learn more about today’s moderator or speakers, their full bios can be viewed on our website, fedsoc.org.

Throughout the program, we’ll turn to the audience for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window and we’ll do our best to answer as many as we can. Finally, I would note as always, all expressions of opinion today are those of our guest speakers, not the Federalist Society. With that, Mr. Rando, thank you so much for joining us today, and I’ll hand things over to you.

Moderator Opening and Panelist Introductions

[1:11]

Robert Rando (Moderator) [1:11]

Thank you, Sarah. I’d also like to thank the Federalist Society for the opportunity to participate as moderator of what will undoubtedly be an informative and insightful discussion about the recent USPTO notice of proposed rulemaking or NPRM changes to institution of inter partes review or IPR before the PTAB.

I now have the distinct honor and privilege to introduce our panelists. In the interest of time, I will keep these introductions brief as you can see from their extended bios that are available everywhere bios are available. Each panelist is so accomplished that their full bios would fill a large part of the hour.

So, first we have Andrei Iancu. Andrei is a former under secretary of commerce for intellectual property and director of U.S. Patent and Trademark Office during President Trump’s first term in office. He is currently a partner at Sullivan & Cromwell and one of the leading voices in intellectual property law and innovation policy.

Next we have David W. Jones. David is the executive director of high-tech inventors alliance or HTIA. Prior to HTIA, David was assistant general counsel for patent policy at Microsoft. Prior to that, he held multiple positions on Capitol Hill. He also clerked for the former chief judge Sharon Prost on the federal circuit and judge Will Garwood on the fifth circuit.

Next we have Joseph Matal. Joseph is the principal at Clear IP, LLC. He has served at both the USPTO acting director and acting solicitor. Prior to that he served in senior legal roles for more than a decade for the U.S. Senate Judiciary Committee and in that capacity he negotiated and drafted many of the key provisions of the America Invents Act.

And next we have Brian O’Shaughnessy. Brian is a partner at Dinsmore & Shohl LLP, the chair of Dinsmore IP transaction and licensing group. He has extensive experience in contested proceedings before the PTAB. He has also been retained as a testifying witness in IP and licensing disputes by the U.S. Department of Justice, U.S. Department of Treasury and by various private enterprise.

Now before we delve into the four specific categories of the NPRM which are one required stipulation for efficiency, two claims found invalid in prior proceedings, three parallel litigation and four institutions in extraordinary circumstances. I would like to invite each of our speakers to provide opening remarks outlining their view of the NPRM. We will then move on to a discussion among the panelists. Director Iancu, if you could please lead us off.

Opening Remarks

[3:40]

Hon. Andrei Iancu [3:40]

Sure. Thanks, Rob and great to be with all the panelists and all the Federalist Society folks watching this. Look, the main point about the NPRM is that the office is taking steps to go through the notice and comment process to solicit views from the public and then make the appropriate final policy decisions, presumably taking into account the views from the public. There are multiple points to the NPRM. I’m sure we’re going to touch on all of them during the panel discussion.

But the key concept here seems to be an effort to align the IPR process with two core principles: one to have a single bite at the apple on invalidity analysis during an infringement case, and to give meaning to the original concept of the IPR system to be a faster alternative to district court litigation. So they’re trying at least conceptually to reduce to reduce or eliminate multiple attacks on the validity of the same patent and to effectively eliminate IPRs if they’re not in fact faster than the parallel district court litigation.

Whether the NPRM actually achieves those in a precisely balanced manner, or whether you think those requirements are good or bad for the patent system, that’s obviously to be debated, and we’ll have to see what the public says. One thing I’m sure of is that the PTO will get a very significant number of comments just judging by the comments the PTO got on prior such requests for public input on PTAB policies. So I look forward to the conversation.

David Jones [6:37]

Thank you Andre. No, I think it’s a mess. But let me just make three quick points. First, it’s contrary to statute. A lot of these things Congress considered and specifically rejected. And hopefully Joe will talk a little bit about that. He was I was the Republican staffer who kind of started off the patent reform process in the Senate and Joe was the superstar who carried it over the finish line.

The second problem with it, the regs just don’t make any sense. They’re going to lead to all sorts of arbitrary results. They foreclose IPRs based on non-final decisions, for example, right? And so you can have all sorts of situations where you have an initial determination by the ITC that is eventually overruled by the full commission or a district court summary judgment kind of decision saying that, you know, this is found not invalid under 103 that gets reversed by the federal circuit, right? And it’ll be years in between.

So you’re going to have situations where you have like a period of time where everyone is foreclosed from challenging the patent and by the time the window opens again because the incorrect decision from the district court gets overruled, well most of those petitioners maybe all of them are going to be time-barred because they’re defendants in a lawsuit you know they’ve already been sued on the patent. So it basically gives the patent owner free reign for a long period of time, usually three years, I think, for a federal circuit decision, to assert the patent without any fear of an IPR.

People call this a one-and-one type of approach. It in many cases will be a zero-and-done type approach just for exactly those reasons. Another problem I’d point out is all of these provisions say that an IPR shall not be instituted or maintained. Right? So that presumably means that if you’ve got post-final written decision and pre-director review, right? So you already have a decision but it’s not final yet.

If any of the things in the second and third part of the regs happen which includes the PTO just deciding it’s more likely than not that something will happen in the future then you lose the ability like basically they will dismiss the IPR and then you have already signed a stipulation saying you can’t challenge under 102 and 103 in that scenario that petitioner not only doesn’t get the benefit of IPR also can’t challenge it in court assuming the stipulation is deemed valid.

And that’s like three examples out of thousands I think where the real problems are. And I say the last thing and this kind of actually surprised me the NPRM does not do almost anything to support the PTO’s conclusions or proposals with actual evidence or data. I mean, the handful of things that they cite, I went through them all their sources and half of them don’t seem|a to support the contention the PTO is making in the first place, but they have all sorts of factual contentions like, oh, this will save litigation cost.

Well, we’ve got economic studies out there that already talk about how much litigation cost IPR has saved. You’re going to forfeit that. I don’t know how the PTO gets the idea that, oh, you know, on balance, you’re going to save litigation costs. They say that stronger patent systems will address market concentration. Well, there’s a bunch of academic papers from economists saying the opposite that patents are correlated with market concentration, not vice versa. So, it really is unsupported. They use kind of skewed statistics and that surprised me because that it seems like that might be a basis for challenge down the road assuming there is any ability to challenge under the APA.

Brian O’Shaughnessy [10:27]

Thanks Rob. Well, I’ll echo the comments. I’m very pleased to be here amongst this distinguished panel and it’s a real honor to be here. So, thanks to the Federalist Society for providing this forum. You know, David raises some issues that are worthy of consideration and I’m sure that those will find their way into his comments that he provides in this response to notice to proposed rulemaking and that’s the purpose of this webinar, but it’s also the purpose of the NPRM is to hear from the practitioners about how the proposed rules might actually be put into practical effect.

I think personally that the proposed rules make a lot of sense. They bring a lot of balance. They bring a lot of corrective measures if you will to the way that the IPR system has been implemented. We all know that the AIA had as one of its objectives to bring greater reliability and transparency to the patent system and to give people an alternative to litigation. We also know that the IPR process is one of only three post-grant processes available to challengers at the PTO. And of course there are the courts and the ITC.

So there are plenty of avenues by which challengers can go after a particular patent and I think they have the opportunity to file PGRs for example early on. PGRs are properly time-barred. They give the patent owner, if we had only PGRs, we’d probably be better off. They give the patent owner the opportunity to rely on quiet title to their asset.

And so there are lots of things that we need to do to remedy the current situation because quite frankly the IPRs haven’t been an alternative to litigation. They’ve been an adjunct to litigation and this has in fact only raised expense. It’s delayed the decision to a final decision on the validity of a particular patent and this has worked to enormous detriment to our innovation economy.

So I disagree with Dave that patents don’t really do the system any good. I think patents have been shown to be enormously beneficial particularly to the disruptive innovator who doesn’t have the assets and the resources that the incumbents have. So I think bringing some balance looking at the IPR system in terms of how it affects the actual patent owners and particularly the innovators is well placed. And these rules make a lot of sense and I think bring a lot more balance back into the program.

Joseph Matal [13:21]

Thank you. You know, it’s kind of hard to take the NPRM seriously. It’s basically a set of arbitrary restrictions that are designed to cut off access to review, including for people who are being sued. The most problematic rule is the one-and-done rule that if anyone in any forum has ever challenged the patent then you can’t challenge it if you’re sued a decade later. Even if you never knew about the previous suit.

The previous challenge can even be in the ITC. ITC proceedings don’t create estoppel against later enforcement of the patent even if they find the patent invalid. They include ex parte re-examination which parties can’t even participate in once the proceeding is started. But most fundamentally, there’s this old Anglo-American principle that if you’re sued, you’re allowed to present your own defense.

It was in 2008 in the Taylor v. Sturgell case that the Supreme Court rejected the concept of virtual representation that you don’t have the right to present your own defense because somebody else represented you somewhere else. Another key feature of the rules is this timing with district court litigation that if the district court’s going to get to trial faster, we should cut off review. Principally, that means if you’re sued in East Texas, where the average time to trial is about 16 months, then you don’t have the right to challenge the patent at the board.

Again, even if you’re being sued on it by someone demanding millions and about 90% of the litigation in East Texas is NPE litigation. Why on earth we would privilege that venue of all things is completely beyond me as what does this mean in practice? Just in the news the other day there was a story about Micron appealing a $400 million verdict against it in East Texas and the patent you know they were sued earlier so they were still able to challenge the patent.

There’s a co-pending appeal of a PTAB decision saying these claims are invalid. This is the technical experts at the board looked at it and decided this was already known. There are plenty of other suits against Micron, mostly by NPE, some by YMTC, a state-owned company. In the future, are we really going to cut off the ability of Micron and companies like that to protect themselves against a patent that’s not valid?

And one final thing, there’s this, a lot of this is premised on the notion that, oh, district court litigation is just as good a forum for testing these things. Look, since the 70s, we’ve shifted mainly to doing jury trials in these cases. Very few jurors have a technical background. Often, very skilled trial lawyers will tell you not even to bother presenting a paper-based patents and printed publications obviousness defense to a jury.

Juries are not going to engage on what was obvious in semiconductor design circa 2007. At best they’re inconsistent about it. And when you get repeated suits, you will have invalid patents enforced for very high amounts. And I hope the administration really thinks about this like how many hits do you want companies like Micron or our semiconductors and others to take for hundreds of millions, sometimes billions of dollars for a patent that if they were allowed to challenge it before the technical experts at the agency, they would agree that it’s not valid.

And I’ve talked to many people on the life sciences side who think you know we don’t really need IPRs etc. And the life sciences is different. Okay the quality is higher there. It’s mostly judge trials and bench cases but I always think back to a line from Bob Armitage who was heavily involved in the AIA was general counsel of Eli Lilly at the time. He warned people if you like patents if you love patents do you love your children? You know most people love their children too.

If your children are misbehaving, don’t you want to correct their behavior? And the folks out there who love patents, if you see the system being abused, if you see patents misbehaving in effect, you want to correct that behavior because you’ll be the most gentle disciplinarian and the backlash that’s going to come if we allow things like this to go forward and literally just immunize patents that never should have issued and are being asserted by NPEs. This is doing we’re doing severe damage to the integrity and legitimacy of the system with this NPRM. I very much hope the administration reconsiders this.

Discussion Begins – “Misbehaving Patents”

[17:52]

Robert Rando (Moderator) [17:52]

Well, thank you, Joseph. Before we get into the individual provisions, Joseph, you brought up misbehaving patents and I guess the question I have is did they misbehave before the AIA or were they good children?

Joseph Matal [18:09]

Before the AIA, you had inter partes re-examinations, which actually had the same scope of challenge. The problem with inter partes, the reason the system was upgraded in the AIA was just the structure of inter partes re-exams made them impossible to get done in a timely manner. They pretty routinely dragged out for six or seven years. In fact, I believe there are still two or three inter partes re-exams that are still pending even though the deadline for filing them expired in 2012.

A procedure that can be dragged out that long that either party can kind of delay at will is not useful as a check on validity when you have co-pending litigation. But the decision to go back to the agency goes back to 1980. Validity review has always been available in courts. But over the course of the 20th century Congress heard enough complaints about this that decided we really need technical experts to be able to look at this.

In the 80s they created ex parte re-exam. Then they decided you really need both parties to be able to participate. They added inter partes re-exam but inter partes re-exam just became dysfunctional. The point of the AIA wasn’t just to make it faster and quicker but it’s that original idea that especially for these complex technologies you’re not going to get an accurate and reliable decision on validity other than from technical experts.

Robert Rando (Moderator) [19:36]

Okay. So Andre, David and Joseph have pointed to a lot of flaws that they see in the NPRM. And Joseph points out misbehaving patents, which I think might be better characterized as misbehaving litigants in the courts. But can you maybe address some of the flaws that have been pointed out and you highlighted the motivation for the NPRM? I don’t think anybody well, people may disagree with the motivation, but can you maybe take on some of those flaws and tell us whether they’re right or wrong?

Hon. Andrei Iancu [20:05]

Well, look, first of all I do want to emphasize that this is exactly the process that’s supposed to take place in a notice and comment rulemaking exercise. Folks who have different points of view make them known and then the administration will consider them all. So I hope folks across the various interests here do that. And I think that will result in a better rule package at the end of the day.

But we have to be careful with the language that we’re using here and try to stay away from hyperbole. So let me just address a couple of the points that have been raised just on a factual basis. David, you mentioned that the NPRM forecloses IPRs based on non-final decisions and you’re right in the reading of the proposed rule which is if there is a summary judgment ruling or a jury verdict the estoppel effectively applies at that point when there are such rulings from the district court that find the patent not invalid and your point was well those can be reversed on appeal.

Okay, but let’s just think through the alternatives here. The district court in those examples found the patent not invalid if it goes on appeal. Two possible outcomes. Theoretically, obviously there are many others, but just theoretically either the Federal Circuit affirms what was just found and therefore the patent is still not invalid and in that case there’s no reason not to attach the estoppel at the earlier point in time. Why wait another year and a half?

On the other hand, if the Federal Circuit finds the patent invalid, then the patent’s gone and everything goes away, including the litigation and the patent completely. You don’t need at that point if the Federal Circuit speaks and the Federal Circuit has found the patent invalid. You no longer need an IPR process obviously at that point in time. So in either circumstance from just that pure technical perspective I don’t think that’s necessarily a reason to find meaningful fault here.

Now you can argue on the other point that Mr. Jones has made which is the pure one-and-done type of approach which is and I think Joe made the same point which is look why should the results coming from a different litigation prosecuted by a different party completely unrelated and at a long distance in time and perhaps over different accused products etc etc. Why should that preclude others? And I have to say that is a fair debate and there are policy reasons to go either way. But it is a fair debate.

But one thing I will say and again to avoid hyperbole here, it’s not that if you go and you accept the NPRM’s approach to that policy, if that’s what comes out, it doesn’t mean that the world has collapsed and defendants have no way to challenge the validity of a patent anymore and that’s it. Billions of dollars will be forever at risk without recourse. The defendants can still defend themselves obviously in the district court litigation or the ITC litigation just as they have been from the beginning of the patent system. They can still go to the patent office if they want and do ex parte reexaminations. That is still a viable approach.

I am not saying that that is the correct policy position. I acknowledge that there are legitimate debates on both sides and I don’t need to repeat but David and Joe have made the policy argument why that would not be fair to the particular litigant in this particular case. On the other side, one can argue the patent owners might argue well look you need quiet title and the PTO has already you know an adjudicative body has already looked at the validity of this thing and a patent is an objective document and once the judiciary in whatever format has passed on it then why should the judiciary look at it again?

Now I really do understand the practical considerations that nothing is purely objective in this world and claim constructions can be different. The scope of claims can be interpreted differently based on the infringement allegations in a particular case and all of that. But my only point is that that is a fair debate and we should avoid the extreme hyperbole on both sides.

One final point to address one point that Joe made. Joe, you fundamentally seem to reject the role of juries at least on the validity analysis. But look, the reality is the jury system is fundamental to the American judicial process. It’s in our constitution. It’s there twice. It’s in the body and in the amendments to be frank. And it’s been a core part of our system of laws from the beginning of time. And if you don’t trust the jury system, then we have bigger problems with our judicial system than patent validity challenges.

But well, I’ll say this. I think it’s a fair debate, you know, that you’re pointing out. Are juries technically equipped or not to hear patent cases? And countries around the world have had that debate and, you know, we are still here in the United States on the side of jury trials, other countries do not have them. But when it comes to the validity question, if you do not like the jury, you don’t trust the juries or a particular defendant does not trust juries, then that defendant can go and do an IPR, but just do the IPR.

Then the biggest problem that I’ve had was with the insistence on both. And if one of your clients, Joe, says, “Look, I agree with you, I don’t think a jury is capable to understand my complicated technology here, and from a validity point of view, I don’t think we should give it to the jury. So, let’s give it to the PTAB.” But in that case, why also maintain the parallel ability to do the jury as well?

And you know, this hasn’t come up yet here in this discussion, but you know, there is the PREVAIL Act out there. And that’s what that bill tries to accomplish. It’s like, okay, each defendant can pick and it’s the choice of the defendant and you pick one. You pick the jury or the court system or you pick the PTAB system, but not both. So, you’ve got to pick the horse you’re going to ride, but don’t do both. And that goes a little bit beyond this NPRM because this NPRM has other issues beyond just picking one or the other for one particular defendant. But conceptually I think that’s a debate that’s an issue worth discussing and resolving frankly.

Robert Rando (Moderator) [29:24]

Thank you Andre. Dave I want to give you an opportunity to respond to various things that Andre has said but Joe first I want to give you the opportunity to respond to being criticized about not liking juries.

Joseph Matal [29:47]

Okay. Well, look, Andre, the system you’re describing, where you’re forced to choose, it’s colorably reasonable. We could have that debate. You’re basically describing the system you left in place when you left the agency. That is not what the NPRM does under the NPRM. Literally, again, like someone else was sued 10 years earlier and couldn’t bring a challenge, brought an unsuccessful challenge. Now, you can’t bring a challenge. And doing a Sotera stipulation, etc., isn’t going to overcome the rules that they’ve put in place here. They seem to not even have the stipulation in the parallel proceedings provision.

You literally will, doesn’t matter what the case is. Someone else was sued earlier or you’re sued in a fast-moving district and you cannot go to an inter partes proceeding before the agency. And it’s great that everyone loves juries. Juries are good at a lot of things. They can tell when people are lying. But again, your typical juror does not have a technical background.

In the few cases where people present these defenses and they’re able to interview the jurors later, they routinely discover the jury deliberations were a disaster. The jury did not engage at all with the technology. Look, a lot of this stuff is just very complex and having the technical background to at least understand the prior art is a critical element to being able to accurately and reliably assess whether this was obvious or not.

Jurors tend to be motivated by things like narratives. When you watch the way really good trial lawyers prepare for this. It’s all about our narratives and our themes and it’s not about are the limitations of the claim met by the prior art. And again this is we’ve had the Supreme Court started talking about the need for technical experts in patent cases going back to the 19th century and denounced how ridiculous it is that he as a judge had to learn this stuff and that we needed some system like this was a long debate building up to the creation of these post-issuance proceedings and it’s pretty clear what’s going to happen if you cut these off.

You’re going to immunize invalid patents and make it impossible to effectively challenge them. And again, like how many multi-hundred million dollar hits do we want Micron Technology or chipmakers to take? These are big companies, but that’s money they could spend on R&D. And I’ll tell you, some of these very companies have expressed in our private discussions that this is existential for them. If they don’t have access to some way to challenge these cases and the NPE suits they’re facing in Texas, it will eventually run them out of business.

So again, I just hope that administration someone talks sense into the people up there. JD Vance has said all these very intelligent things about manufacturing, how you can’t give up the ability to make things. You’re eventually going to be impoverished if you forget how to make things. A lot of innovation just comes out of the process of mastering the manufacturing. If we let companies like Micron be run out of business or hobbled, our manufacturing strategy is get your DRAM memories from China. That’s the administration’s manufacturing strategy if they go forward with some of the ridiculous things in this NPRM.

Hon. Andrei Iancu [33:05]

Okay. I mean look again I really think we should avoid hyperbole here. Just because you have to litigate a patent in court or at the ITC or through ex parte re-exam because this one tool is unavailable in a particular case doesn’t mean that the United States manufacturing infrastructure collapses. I’m not debating whether you like the NPRM or not. There definitely points to be discussed, but again, I think we’re going to lose perspective on creating a better system if we engage in this type of hyperbole.

But on the jury point, I just want to ask you, Joe, a direct question accepting hypothetically what you just said, the juries are not capable of doing that. And some cases are definitely technology is more complicated and in that particular case you really don’t think the jury can do it and you want the experts at the PTAB to do that validity challenge. Do you agree then that in that case you should not also maintain the ability to go to that jury that you just articulated is not reliable.

Joseph Matal [34:25]

You know that’s not what the statute says but it’s a fair compromise. Frankly, I think if a review has been instituted, if the board’s already found there’s a reasonable likelihood the claims are invalid, then you should stay the trial. There’s an excellent chance at that point that some or all of the claims will be cancelled once you’ve met that institution threshold. And going through a trial is frankly a waste of everyone’s money.

Typically when these dual litigations have to go forward that patent owners complain about, it’s not the defendant who wanted the litigation to go forward. It’s the plaintiff who wanted the litigation to go forward. Typically, and from what I’ve seen, if both the defendant and the plaintiff ask for a stay of the case pending the completion of the review, the judge will grant it.

And look, I’m not saying this is you do get cases where the technology is very accessible and where an ordinary person can assess would this have been obvious or not, but in some of these cases, it’s just invaluable to have that technical expert. And at the very least, you’re not going to get a reliable result. And when these companies are facing repeated litigation, again, like these numbers are in the papers, these are multi-million even billion dollar awards. Do we want to take that kind of money out of these companies’ hides? Money that could be spent on building another auto plant or a chip fab. It seems like a no-brainer to me that we want an accurate and reliable assessment of validity before we shift that kind of money around.

Discussion of NPRM Provision 1 – Required Stipulation

[35:59]

Robert Rando (Moderator) [35:59]

Okay, Dave, I promise I will get to you because I’m sure there’s a lot you’d like to say about this conversation. Brian, I’d really like to bring you in. And in light of the time I’d like to try to address each of the provisions of the NPRM separately.

So the first provision is the required stipulation and it says quote inter partes review shall not be instituted or maintained unless each petitioner filed a stipulation with the board and any other tribunal where it is litigating or later litigates regarding the challenged patent stating that if a trial is instituted the petitioner and any real party in interest or privy of the petitioner will not raise grounds of invalidity or unpatentability with respect to the challenged patents under 102 or 103 in any other proceeding. Brian, can you tell us whatever benefits or flaws you see in that provision?

Brian O’Shaughnessy [36:51]

Well, I think the benefits are obvious in the sense that okay, we’re going to actually choose a tribunal and we’re going to abide by the decision of that tribunal. So whichever way it goes and whichever party whatever the parties decide it makes sense rather than having two duplicative proceedings that by the way are decided according to different burdens of proof and different standards.

So, we can have competing decisions that come out of the Article 3 courts and decisions that come out of the PTO tribunal that are in conflict but are both correct. And that just doesn’t make any sense from a jurisdictional efficiency standpoint. And I think to comment on Joe’s remarks about the professional and technological expertise within the patent office relative to that of a jury.

I’m a little bit skeptical of the notion that just because we have technical experts in the PTO that they’re necessarily going to always come to the right conclusion. The fact of the matter is we have an issued patent that the PTO has determined is patentable. And then it goes back into the same agency before substantially the same technical experts who come to the opposite conclusion. That just doesn’t seem to be efficient from the standpoint of investment and innovation in giving people the opportunity to move forward.

So I’m also troubled by sort of the one-way stare decisis that exists under the IPR system. The serial challenges that take place on substantially the same arguments means that the patent owner is perpetually in jeopardy and never really gets out from underneath that. Whereas they would in a court proceeding but we don’t have anything that stops the serial challenges that are in place right now.

So I think somebody ought to get to choose a tribunal and then that really should be effectively the end point. But we don’t have that and so consequently we have duplicative litigation. We have duplicative IPRs. And it’s just not efficient and it’s not fair and reasonable for the patent owners and it certainly doesn’t promote innovation.

David Jones [39:13]

So, tell you what, Brian, I’ll trade you one and done on the IPR side for one and done on the litigation side. Patent owners can only bring one case, preferably just against one defendant and then they’re done forever. And they can’t sue anybody. And then we can have one and done on the IPR side. I’d be happy to make that deal.

Brian O’Shaughnessy [39:31]

But they are, Dave. I mean, if you bring a patent suit and the defendant proves that the patent’s invalid, they’re done. They’ve shot their chance and they’re not going to get to come back and bring that up again. If they win, that’s a different story. And by the way, usually they’re arguing about infringement at that point. Now, certainly the defendant at that point can again raise substantially the same arguments of invalidity. But presumably the judge will be at least moderately persuaded by the arguments that were raised in an earlier proceeding. So, you know, I think that exists.

David Jones [40:12]

Dave, I don’t well, I’m not so sure, but I won’t argue the point. I would like to get back to kind of Andre’s point about exaggeration because I’m a big exaggerator, but it is no exaggeration to say it’s not just that billions would be at risk in judgments. I mean, you look at the litigation record of the companies I represent, they do pretty well in litigation. They did pretty well in litigation prior to the AIA, but not always, right? You do have a lot of uncertainty with juries, but it will be billions of dollars just in litigation costs that will be added here. I mean, easily billions.

I mean, there was a study pre-AIA that found that just I think PAE suits resulted in something like a $32 billion loss to the U.S. economy. And to Andre’s point about again about exaggeration, it’s not necessarily exaggeration. I don’t know what’s going to happen, but this look is going to look a lot like pre-AIA days. And that looked pretty ugly.

And you know, companies really do leave countries because of kind of litigation risk. When I was at Microsoft, we, in during the Motorola case, we’d been telling the German government for years, the liability under the patent laws is getting out of control. You’re going to start driving business away. During the Motorola litigation, Microsoft announced that it was moving its European distribution center out of Germany. And we got a call a day or two later from the German government said that’s a lot of jobs and a lot of tax revenue. What can we do? I said well you could have listened to us like two years ago. Now the decision’s made and we’re leaving.

So it really does I mean you know I can point to a number of practical experiences where people have made fairly large corporate decisions and sometimes to leave the entire jurisdiction just because of the liability because you have other options. Right? So if the United States is slightly better rather than a lot better as a site for your manufacturing plant, well that extra 100 million, 200, $300 million could tip the balance. It really can have an effect.

Brian O’Shaughnessy [42:13]

I would say one of the things that’s more mobile than companies and moving in response to litigation or legal developments is investment. And if investors know that they’re not going to get the return on their investment because of a weak patent system, they’re going to invest in companies elsewhere. And we’ve already seen that happen. And so what we want to do is we want to invest in disruptive technologies here in the United States. And so we need to protect innovators and we need to protect patent holders.

David Jones [42:44]

But Brian, that just doesn’t make any sense to me. I mean, most VCs are investing in companies they expect to operate in multiple countries. So you’d have to have the same defects in every country for that to make any sense, right? And then if you have the same defects in the patent systems of every country enough to reduce incentives, well, there’d be no point to moving. And if you’re in an international company, there is already no point to moving because under TRIPS, you’re going to face the same, you know, when you’re located in China and you apply for a U.S. patent, you’re going to face the same defects. And when you’re a U.S. company, you’re almost always going to apply for a patent in China. So it just it doesn’t make sense to me that anyone would there’s no reason under TRIPS for anyone ever to change their residence because of patent laws.

Brian O’Shaughnessy [43:29]

Well, David, I mean that may be true for the large multinationals you represent. But it’s not true of the startups, the original entrepreneurs and the like. And you know a lot of American innovation happens in the startup economy obviously across the spectrum and usually you look to your domestic market first you know if you’re an American startup your first instance is I’m looking to develop and market my product here in the United States and if I’m successful then I’ll go to Europe maybe and then if I’m successful, I’ll go to China and so on and so forth. But first and foremost, I need my domestic market and I need to protect that domestic market because if I don’t have that, by the time I get to Europe, I won’t ever get to Europe or to China. It’s going to be too late. The product will be killed and the company will be killed in its infancy. Obviously when the companies are mature and they’re multinationals, conglomerates and all of that the calculus of all this is a little bit different.

Hon. Andrei Iancu [44:50]

I also want to go back to again the whole conversation is the unfortunate I’m concerned that the whole conversation surrounding this is devolving into hyperbole and it’s going to prevent good policy to be made and good policy always results from conversation discussions and compromise and I already heard through the various statements, a proposed compromise from Joe, but if we’re just sticking at the extremes on both sides, we’re not going to be able to have the rational conversation where it needs to be in the middle.

So, statements like, for example, you may have been kidding, Dave, I don’t know, but statements like you’ll trade one and done in the IPR system with one and done for infringement just doesn’t make sense. It doesn’t make sense. It’s not like it’s one and done for invalidity. Period. Every defendant, no matter what, will have the ability to defend himself in court for sure, just like the plaintiff has an opportunity to present the plaintiff’s case in court in every single case. This doesn’t impact the court cases at all. So, you still have the defense there.

So you can’t just because you’re preventing one PTO mechanism now you’re preventing the entire court system on the other side. And by the way you’re not even preventing the entire PTO mechanisms. You still have the ex parte in play. So my only point is it’s fine to debate whether one and done to the world is good policy or not. It’s fine to have that debate, but I would just simply stay away from these extreme hyperboles that divert from a potential result that would result in a balanced system.

So, for example, and I asked Joe this and I will ask you as well, are you okay with a system that is not one and done to the world, but it’s one and done as to a particular defendant or short of that one and done as to a particular proceeding. There’s various gradations here. So my only hope is that if people don’t like the NPRM, and again I emphasize, there’s legitimate arguments on both sides of all of these points in the NPRM. If you don’t like them, make a counter proposal that reaches a result that we don’t have. On the one hand, you don’t like the one and done to the world, but on the other hand, we also shouldn’t have endless repetitive challenges between the same parties on the same patent with the same arguments. There’s lots of place in the middle that people can have a rational debate and reach a rational conclusion.

David Jones [47:57]

Oh, here’s a compromise for you. I don’t think you’re going to like it, but one way to address some of the issues that Joe and I are raising would be to have something like a working requirement. So, you don’t get the benefit of a discretionary denial unless you’re actually practicing the patent in the United States. That protects investment in the United States. It actually gives you additional incentive because you get that benefit if you’re working the patent. It protects small entities. You could structure it however you want. In terms of the entity making substantial efforts to practice, it doesn’t mean that they have to be a going concern that would exclude foreign companies that own U.S. patents but don’t practice in the United States from getting the benefit.

I mean, something like that, the benefit of a discretionary denial? So, no discretionary denial unless you’re working the patent in the United States. That takes care of a huge portion of the PAE problem that concerns tech. I don’t see how it gores the ox of, if it’s written properly, of patentees who are actually intending or are already in business in the United States. But that would seem to satisfy the concerns on both sides.

Brian O’Shaughnessy [49:10]

Yeah, I would say it’s a rather superficial look at how the patent system is actually used in practice. Not everybody patents things that they’re going to turn into a product. Sometimes they’re patenting it to license it or monetize it in some other way. Sometimes they’re using it to maintain a particular market in a particular technology that is something other than what they’ve patented. So there are lots of different ways that people use the patent system and I think history has shown that we have long since refused to put in place a working requirement and I think the wisdom of that is self-evident.

Philosophical and Legislative Discussion

[49:55]

Robert Rando (Moderator) [49:55]

Well, let me get back to Andre’s point about resisting hyperbole and trying to reach compromise through thoughtful processes. I mean it’s a given that we all approach the U.S. patent system with good faith in the best for the system and the best for the country. But here’s a question, if both sides of the issues regarding IPRs or patent law reform believe that their view of how to achieve the U.S. Article 1 Section 8 Clause 8 constitutional goal to promote progress of science and useful arts and maintain fidelity with it is correct. How is that reconcilable? Can both views be right or does it vary based on what the progress of science and useful arts has become or is it merely one side is right and the other side is wrong? Joe, would you like to tackle that?

Joseph Matal [50:48]

I’ll pass on the broader philosophical stuff. I mean, everyone has their different view. When you talk to people in different industries, they just have completely different views of these issues. And frankly, the life sciences litigation is just so radically different from what goes on in the tech space. It’s not even the same patent system.

I just, if we’re going to talk about history, I came across something interesting recently. When he was Secretary of State, Thomas Jefferson got into a back and forth discussion with a congressman about legislation they were considering. And the congressman had proposed, hey, shouldn’t we have a rule that once patent validity has been decided once in a case? That should be the end of it. And Jefferson replied, if you do that, people will immediately have a collusive suit brought against them just to cut off future challenges. So, this idea, the one-and-done philosophy is one that Thomas Jefferson, one of the architects of the first patent acts, rejected. Certainly the members of the Federalist Society should pay some heed when even Thomas Jefferson considered this and told you it’s a terrible idea.

Hon. Andrei Iancu [52:04]

Just for the record, Thomas Jefferson was not discussing the America Invents Act or the IPR system or the existing multiple parallel challenges at the same time on the same patent between the same parties. Again, let’s just re-ground it here.

Look, the reality is the patent system from the beginning of time is a compromise. It’s always a compromise between the rights of the innovator to protect the invention and his rights for a limited period of time versus the right of the public towards access to that innovation. And everything comes down from that quid pro quo and compromise.

And there’s a push and pull. And our system for the last few decades has been harmed in my opinion by extreme views on one side or the other. The patent system and any system of property depends on long-term stability. Patents and other IP rights enable investment in long-term disruptive and risky technologies. People who make use of the system and then invest heavily in the innovation economy have to have a long-term view and these radical moves from one side to the other in increasingly fast pace is very disruptive to our innovation economy and long-term it’s going to put the United States at a competitive disadvantage vis-à-vis the rest of the world.

This is why it’s really important that we try to get the sides together and have a rational conversation to reach long-term stability. And look, bottom line is, and I’ve said this for a long time, I prefer a legislative solution in general to enable long-term stability. And we haven’t talked in detail about PREVAIL, but that could be the conversation for a different panel. The office in the meantime until there is a legislative solution has to operate the system that’s been given to it and this NPRM is an attempt to operate the system in their view through notice and comment and get the public input and if this is not the way it’s going to go forward it’s going to be amended let’s have the rational points be brought forward and fix the NPRM as the consensus comes out to be.

David Jones [55:05]

Unfortunately, Andre, I think the office has put itself in a position where that’s probably not possible. I mean, they’re not following the regulations that were promulgated before. There’s nothing in here that cuts off discretion based on the Federal Circuit decisions. It’s unlikely that you can get mandamus, an APA suit, and certainly can’t get a direct appeal of any of these decisions. So, I feared that you’re going to have people on my side who look at the regulations and say, why would I believe that they will actually be followed? What possible relevance do they have? Why should I spend a lot of time trying to negotiate something that I don’t believe will be binding? And I think and you know me, Andre, we have sat down and had these conversations, normally we’d be happy to, but in this circumstance, I can’t tell my member companies that yes, the PTO is going to abide by these regs, whatever we negotiate, there’ll be no certainty at all. They’re not, like I said, abiding by the regs that were promulgated previously.

Robert Rando (Moderator) [56:19]

Well, getting back to Andre’s point about legislation. So if Congress in order to achieve stability and the finality issue that we’re all talking about as well in terms of determinations would it make more sense for Congress to really take the bull by the horns so to speak and deal with these issues directly? And I would suggest that we come up with I’ve come up with an acronym Epstein, which would probably make it sail through quite quickly. But, you know, I’ll ask each of you to just briefly say whether you think that a congressional response to these issues and what’s, you know, the PREVAIL Act, for instance, is a better course of action to avoid whiplash from administration to administration at the agency. Brian, I’ll let you first.

Brian O’Shaughnessy [57:13]

Yeah, thanks Rob. Well, I agree 100% with what Andre said. You know, legislation is the only way to fix this. These are invariably long-term investments. They’re tricky, risky investments. Patent system, a reliable, predictable patent system is central to that.

And to get back to your earlier question, since the very beginning of this nation, we wrote into our constitution the provision for the patent act. Everybody wants innovation. Doesn’t matter what side of the coin you’re on. Everybody wants innovation. But the fact of the matter is we created with our constitution the first patent act of its kind that had not existed anywhere else in the world with certain limitations that the rights would go only to the inventor for limited times and their exclusive rights only.

And as a result we have become the most innovative nation the world has ever seen and that’s because of our legal regime. It’s not something in the water here in the United States. It’s because we have a predictable, reliable legal regime that protects innovators. And so I agree with Andre that we have to find the middle ground. Legislation is a tool of compromise. But I do believe legislation is the only way to fix this because otherwise we’re going to be tacking port and starboard for many years to come as each administration changes and we get different people coming in with different ideas. So legislation is absolutely imperative.

Joseph Matal [58:52]

Sure. One interesting thing is, we now have a dozen years experience under the America Invents Act and PTAB proceedings. And one thing we know for certain despite all the attacks on the proceeding from within and without the agency is the proceedings actually work quite well. They work more or less as intended. The board is producing high-quality decisions. Those decisions are upheld on appeal more often than district court decisions are even though they’re more reviewable because they’re actually explained.

To the extent people have detected bias in the board’s decisions and the Federal Circuit’s reversals, it’s been a bias in favor of patent owners. The board is much more likely to be reversed for having failed to find claims unpatentable than to be reversed for finding them unpatentable. I’d say there’s a good case to be made that at this point more of these issues should be shifted from the board and out of court that a broader set of issues should be allowed to be raised in inter partes reviews or later in the life of the patent. PGR is great but it can only be brought in the first nine months and you can’t challenge every patent in your art field. Most people aren’t going to have that budget.

The problem is though legislation takes years and it was about a dozen year process for the AIA and right now we’re facing this NPRM that is literally going to cut off the ability to challenge validity on improperly issued patents in hundreds of cases. If the administration goes through with this NPRM, you’re going to see American manufacturers get ripped off on a massive scale. Again, we know these proceedings are the only reliable and consistent system for reviewing these things. Why on earth the administration is doing this, I frankly have no idea. It completely undercuts everything that the higher level officials have said about the importance of strengthening and reinforcing manufacturing capacity in the United States.

Closing Remarks

[1:00:54]

Robert Rando (Moderator) [1:00:54]

Okay. Well, I see we’re kind of run over time, but to Andre’s point, I think it would be very beneficial if we could reconvene this group and talk about PREVAIL. If everyone is in agreement to that, I don’t run the show, but I’ll certainly make that suggestion and I think it can happen.

I want to thank each one of you for all of your thoughtful comments and this discussion. Hopefully we’ve all learned a little something. I believe as Andre points out the best way to understand your own position is really to understand the position of the person who disagrees with you and then hopefully you can reach that compromise. Any last thoughts before we end?

Hon. Andrei Iancu [1:01:44]

Legislation. Yes, but not necessarily to fix the PTAB. I think we might need a new solution.

Robert Rando (Moderator) [1:01:56]

Anyone else? Okay, I guess we’re at end. Thank you again. I’ve thoroughly appreciated this conversation. Thanks all. Good to see everybody.

Sarah Clark [1:02:02]

Thank you on behalf of the Federalist Society. Thank you so much to Andrei, Joseph, David, and Brian for speaking with us today and to Rob for moderating. We’re so grateful for your time and expertise on this important topic. Thank you to our audience for joining us. We really appreciate your participation. You can stay up to date on other announcements and upcoming webinars on our website fedsoc.org or all major social media platforms. Thank you once more for tuning in and we are adjourned.

1.  Trump’s Plan to Raise Patent Office Fees: Thumbs Up.  [↩]
2. The Patent Holocaust; The Overwhelming Empirical Case Against Patent and Copyright. [↩] [↩]
3. How to Improve Patent, Copyright, and Trademark Law; Obama’s Patent Reform: Improvement or Continuing Calamity?; Patent Reform is Here! O Joy!; The Mainstream Patent Pendulum Swings Back; The American Invents Act and Patent Reform: The Good, the Meh, and the Ugly. [↩]
4. Trump’s Plan to Raise Patent Office Fees: Thumbs Up; eBay Inc. v. MercExchange, L.L.C. (2006); The Patent Eligibility Restoration Act; The Mainstream Patent Pendulum Swings Back; Supreme Court Prepares to Chop Down “Clear and Convincing” Standard for Proving Patent Invalidity. [↩]
5. Trump’s Plan to Raise Patent Office Fees: Thumbs Up. [↩]
6. Kinsella & Rosenthal, “How to Operate Within the Law: Patents on Medical Procedures” (Duane Morris website version), The Legal Intelligencer [Philadelphia] (Feb. 5, 1998) [↩]
7. “The America Invents Act and Patent Reform: The Good, the Meh, and the Ugly,” Mises Daily (Nov. 14, 2011). [↩]
8. No, Libertarians, We Should NOT Abolish the CDA §230 and DMCA Safe Harbors!; More copyright insanity: Textbook Publisher Pearson Takes Down 1.5 Million Teacher And Student Blogs With A Single DMCA Notice; MP3Tunes ‘Safe Harbor’ Challenge Is Legal Test for Cloud Storage. [↩]
9.  We are all copyright criminals: John Tehranian’s “Infringement Nation”. [↩]
10.  The tepid mainstream “defenses” of Aaron Swartz; Federal copyright persecution leads RSS co-author and anti-SOPA activist Aaron Swartz to kill himself; Lessig on the Anniversary of Aaron’s Swartz Death; Tim Lee and Lawrence Lessig: “some punishment” of Swartz was “appropriate”.  [↩]
11. Obama’s Patent Reform: Improvement or Continuing Calamity?; Patent Reform is Here! O Joy!; The American Invents Act and Patent Reform: The Good, the Meh, and the Ugly. [↩]
12. Whereupon Grok admits it (and AI) is severely gimped by copyright law; Libertarian and IP Answer Man: Artificial Intelligence and IP. [↩]
13. Another Problem with Legislation: James Carter v. the Field Codes; On the Role of Commentators and Codes; Roman Law and Hypothetical Cases; The Superiority of the Roman Law: Scarcity, Property, Locke and Libertarianism.  [↩]
14. The Overwhelming Empirical Case Against Patent and Copyright. [↩]

nb @NSKinsella pic.twitter.com/ouu4CeRwNa

— Kadaververwertungsanstalt (@witheredsummer) December 2, 2025

Court to consider billion-dollar judgment for copyright infringement

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• KOL454 | Interview with my Patent Mentor, Bill Norvell, about Patent Law and Our Days Together
• Pro-IP “Anarchists” and anti-IP Patent Attorneys

Gratifying that my first patent law boss and mentor from 1993–1994, Bill Norvell, has become an anti-IP convert.

A recent email from Bill, and my response: [continue reading…]

Related:

• The Patent Defense League and Defensive Patent Pooling

Rob Wicks called to my attention The Patent Bay. Not quite sure what is is just yet, but it seems to be an attempt to limit the aggressive use of patents by having members pledges not to assert its patents against other members of the pool. From the home page:

Non-Assertion Patent Pledge

Related:

• The Structural Unity of Real and Intellectual Property
• The “Ontology” Mistake of Libertarian Creationists
• Objectivists: “All Property is Intellectual Property”
• A Recurring Fallacy: “IP is a Purer Form of Property than Material Resources”

Ejan Mackaay, “Economic Incentives in Markets for Information and Innovation,” Harv. J. L. & Pub. Pol’y 13, no. 3 (Summer 1990): 867–910. This was part of the “Symposium: Intellectual Property” published in vol. 13, no. 3 (Summer 1990) of the Harvard Journal of Law & Public Policy, which also included: [continue reading…]

See Bylund, Minarchism Is Statism Lite. Per Bylund, “Minarchism Is Statism Lite,” Mises Wire (Nov. 4, 2025):

It may be true that lovers of liberty, originally steeped in society’s preferred form of social democracy, must travel along the spectrum of the state via small (“minimal”) before reaching the conclusion that the state must go. But logically, this is not the case. To cure cancer, it is not necessary to reduce the size of a tumor bit by bit. The cure is to remove it. Similarly, if a rock upsets the flow of a stream, the solution is not to change the size or shape of the rock, to make it more streamlined, but to simply remove it. [continue reading…]

From Catalaxia: Against Intellectual Property (Formal Proof) catalaxia Substack, (nov 12, 2025)

Purpose of the Formal Argument

I propose to question the justification of intellectual property based on a formal reasoning that establishes concepts of “good”, “use”, “authority”, “property” and “abundance”, among others. The formal system is structured by means of definitions and axioms that, together and with some premises, attempt to demonstrate solidly (solid deductive argument) that the assignment of exclusive property rights (especially in the context of abstracted ideas or properties) leads to contradictions when considering goods that are abundant (i.e., susceptible of being used simultaneously by different agents). [continue reading…]

Sebastian Wang, “Review of Against Intellectual Property by N. Stephan Kinsella,” Libertarian Alliance [UK] Blog (March 25, 2025).

Kinsella, Stephan. The Problem with Intellectual Property. Papinian Press Occasional Paper, No. 2. Houston, Texas: Papinian Press, May 15, 2025 (v.1.1). 30pp. ISBN Ebook 979-8-9890306-8-2. Available online at C4SIF. Published under Creative Commons Zero (CC0).

Stephan Kinsella’s The Problem with Intellectual Property (2025) is a concise but thorough demolition of the case for patents and copyrights. It draws upon the author’s decades of scholarship and advocacy to set out with clarity why intellectual property (IP) is not property at all, but a state-created distortion of genuine ownership. In doing so, it strengthens a long tradition of Austrian and libertarian criticism of monopoly privileges. [continue reading…]

Related:

• On Leading by Example and the Power of Attraction (Open Source Publishing, Creative Commons, Public Domain Publishing)
• Tucker, The Magic of Open-Source Publishing
• Kulldorff, The Rise and Fall of Scientific Journals and a Way Forward
• Academic publishers have become the enemies of science: yet more real piracy
• Tucker, The Magic of Open-Source Publishing
• Tucker, “Authors: Beware of Copyright,” in Bourbon for Breakfast (Mises Institute, 2010)
• Authors: Don’t Make the Buddy Holly Mistake
• On other rackets: Douglas E. French, When Movements Become Rackets and Other Swindles: The PFS Trilogy, Stephan Kinsella, ed. (Houston, Texas: Papinian Press, 2025)

I’ve complained over the years that many libertarian scholars and writers—often academics and intellectuals who publish scholarly books and journal articles—make the mistake of publishing with commercial or, worse, academic publishing houses that paywall their work. They spend all this effort to develop theory and spread the word of liberty, but then don’t even bother to try to make it easily accessible online. In my view they should put up a free PDF at the very least, and either negotiate permission with the publisher or journal or select a journal that publishes online for free, like the Journal of Libertarian Studies, Quarterly Journal of Austrian Economics, Reason Papers, The Independent Review, or various open access journals (there are many of these; see this Grok summary). Unfortunately, other journals in our space, shamefully, are paywalled and closed, e.g. the Review of Austrian Economics and Journal of Ayn Rand Studies. The RAE used to be open when published by the Mises Institute, but when Rothbard died in 1995, the Mises Institute switched the QJAE and turned the RAE over to the Hayekians at George Mason or something who then moved to a closed, paywalled model. [continue reading…]

The USPTO director and Japan’s patent office just rejected Nintendo’s claims to own “throw ball to catch monster” and “manual/auto battle” — citing games from 2002–2017. This isn’t justice — it’s the patent system admitting it failed, only after a tiny studio spent millions defending itself. If basic gameplay can be patented, innovation is dead. Abolish IP before it abolishes creativity.

HUGE blow to Nintendo: head of U.S. patent office takes RARE step to order reexamination of “summon subcharacter and let it fight in 1 of 2 modes” patent – games fray

https://gamesfray.com/huge-blow-for-nintendo-head-of-u-s-patent-office-takes-rare-step-to-order-reexamination-of-summon-subcharacter-and-let-it-fight-in-1-of-2-modes-patent/ [continue reading…]

Albert Esplugas Boter, “The Monopoly of Ideas: Against Intellectual Property,” Libertarian Alliance (UK) (9 Nov. 2025)

The Monopoly of Ideas: Against Intellectual Property

Libertarian Alliance (UK)

9 Nov. 2025

by Albert Esplugas Boter
Translated by Juan I. Núñez

This article was originally published in liberalismo.org, on July 11^th, 2005, and a revised version was later featured on Procesos de mercado: revista europea de economía política, N°. 1, 2006 (pp 47-104).

“[T]he attempt to generate profit opportunities by legislatively limiting access to certain ideal goods, and therefore to mimic the market processes governing the allocation of tangible goods, contains a fatal contradiction: It violates the rights to tangible goods, the very rights that provide the legal foundations with which markets begin.” [continue reading…]