As the U.S. Patent and Trademark Office (USPTO) weighs new proposals that critics warn would further flood courts with meritless lawsuits, it’s important to remember who benefits from tilting the rules of legal engagement in favor of patent infringement plaintiffs.
Advocates for the USPTO’s proposed rules, and similar measures in the recently introduced PREVAIL Act, frame their position as standing up for small inventors. But claims about small inventors hide the ball. These changes would make USPTO processes for reviewing invalid patents harder to access as an alternative to litigation. Who really benefits when litigation is the only way to resolve patent validity disputes? Not small inventors who could knock down bad patents (or flawed challenges) at the USPTO more cheaply and quickly than they could in court. The real beneficiaries are powerful interests — including some of the nation’s biggest law firms — that profit from lawsuits, no matter how meritless.
One need only look at how Big Law responds to patent litigation hotbeds to see how they profit from the weakening of litigation alternatives.
Eyebrows were raised across the patent landscape in 2018, when Judge Alan Albright, a patent litigator who had just taken a seat on the federal bench, set out on a national tour to recruit patent infringement plaintiffs to file cases in his court in Waco, part of the Western District of Texas (WDTX). Judge Albright’s efforts were complemented by a rule change the former USPTO director enacted, blocking access to the agency’s patent validity review processes if litigation involving challenged patents was in progress. Judge Albright responded by fast tracking cases so that patent trolls — companies that do nothing but exploit low-quality patents and lawsuits for financial gain — could more easily avoid patent reviews at the USPTO.
Evidence of Judge Albright’s pro-plaintiff bias abounds. He’s admitted that, in patent cases, he “want[s] to ensure the plaintiff has an opportunity to have a jury trial,” instead of having disputes resolved through USPTO review. And he’s known for taking “a restrictive posture toward certain types of defensive motions,” including motions to dismiss cases on legal grounds and stay cases pending the outcome of USPTO review proceedings.
Judge Albright’s efforts worked. In 2020, he presided over more than one in five patent cases in the United States — more than 85 percent of which were brought by patent trolls.
The USPTO’s restrictions on patent reviews and Judge Albright’s willingness to exploit them has not only attracted patent lawsuits to Waco, but also Big Law firms representing — and hoping to represent — the parties involved.
Today, numerous Big Law firms have a strong presence in WDTX, specifically in Waco where Judge Albright sits. The scale of their presence is disproportionate to Waco’s industry and the timing of law firms’ arrival confirms the magnetic effect of Waco’s pro-litigant environment. Winston & Strawn, for example, a firm dating back to 1853 whose partnership included USPTO Director Kathi Vidal until she took office, opened a new office in Waco in August 2021. The move was prompted, according to an article in Texas Lawyer, “by the amount of work its IP lawyers have been doing in [Waco].”
The list of recent Big Law arrivals goes on and on: Patterson & Sheridan, Gray Reed & McGraw, Stradling Yocca Carlson & Rauth and many, many others are hanging shingles in WDTX.
Firms are flocking to WDTX because of patent cases in Waco, the 24th largest city in the Lone Star State. They see an opportunity to represent clients — both plaintiffs and defendants — in this hotbed of patent litigation.
It’s galling that USPTO leadership and elected representatives now propose tilting the playing field even further in favor of litigation. The new USPTO proposals, and similar provisions in the PREVAIL Act, would make it harder for people to ask the agency to review bad patents and correct mistaken grants, pushing more meritless cases into the courtroom. This makes technology creators and users even more vulnerable to abusive litigation and deprives them, as well as public interest groups, of the only option for challenging invalid patents more quickly and cheaply than lawsuits allow.
While advocates for these changes claim to be fighting for the little guy, in reality, they are on the side of powerful interests that benefit from a pro-litigation environment. If these rules go into effect, patent trolls and trial attorneys will be the primary beneficiaries at the expense of practically everyone else. The harm will be greatest for those who are least equipped to litigate, such as independent technology developers, startups and small businesses.
With stakes this high, we need the USPTO and Congress to correct course. This means withdrawing recent proposals and working to ensure the patent system promotes scientific and economic progress, not litigation.
Alex Moss is the Executive Director of the Public Interest Patent Law Institute, a non-profit dedicated to ensuring the patent system promotes innovation and access for the public’s benefit.