For years, major American tech companies have complained about the threat of intellectual property theft. The U.S. government has projected that Chinese companies flouting IP protections costs the American economy as much as $600 billion every year. But this problem of companies ignoring patents and other IP protections isn’t just a cross-border issue — there’s a similar issue right here in the U.S. If major tech companies seem less concerned about IP violations closer to home, that might be because in these cases they’re often the perpetrators, not the victims.
For example, in January, the United States International Trade Commission, a quasi-judicial body that oversees trade enforcement matters, found that Google infringed on multiple patents held by the speaker maker Sonos. The commission gave Google 60 days to implement software updates to remove the stolen technology or else face a ban from importing a range of its products — including its Google Home smart speakers and Pixel phone — and selling them here in America. Google complied, at the cost of removing features and reducing the functionality of the products.
This was just one in a string of similar legal defeats that Google has suffered. In February, a jury in Texas ruled that Google’s Nest Thermostat infringed on a patent held by EcoFactor, and ordered Google to pay $20 million. In a $26 million verdict from November 2021, a federal jury found Google’s YouTube platform in violation of a patent held by VideoShare LLC.
Google isn’t alone, however. Other Big Tech firms have infringed on smaller competitors’ technologies in recent years, and have also faced reprimands and hefty financial penalties from courts and the International Trade Commission. In August of 2021, a jury ordered Apple to pay $300 million in damages to Optis Wireless Technology for infringing on that firm’s patents. Apple similarly owes VirnetX, an internet security software firm, over $570 million for infringement. And Cisco and Centripetal Networks, a Herndon, Virginia, startup, will return to the district court to litigate whether Cisco infringed Centripetal cybersecurity patents. Cisco previously owed nearly $2 billion to Centripetal for infringement, only for that ruling to be tossed due to a judge’s minor conflict.
These judgements have shown Big Tech that infringement doesn’t come without legal consequences — but this solution might not have teeth for much longer. Instead of simply stopping their infringement and licensing rivals’ technologies fairly, major tech firms — including Apple and Google — are now pursuing a legal workaround. They’re trying to make it easier to invalidate rivals’ patents by pushing for legislation that would weaken IP protections. After all, if there are no patents, there can be no infringement.
Business as Usual
For years, executives at major tech firms have seen these legal judgments as just a cost of doing business. Damages for lost cases, even when stretching into the hundreds of millions, are a drop in the bucket for companies like Apple, which reported $365.8 billion in revenue in 2021. Patent theft, sadly, is a rational strategy for corporate behemoths seeking to entrench their own dominance and neutralize a threat from an emerging startup. After all, it’s cheaper to steal than to license smaller firms’ technologies.
Just over a decade ago, this strategy became even more viable. In 2011 — in part due to the urging of tech lobbyists — Congress created a tribunal within the U.S. Patent and Trademark Office (USPTO) called the Patent Trial and Appeal Board (PTAB), which was ostensibly created to provide a faster, less expensive way to settle patent disputes outside of the courts. Instead, it opened up a new avenue for Big Tech gamesmanship of the patent system. Now, deep-pocketed tech firms could simultaneously challenge smaller rivals’ patents in two arenas — in the courts and at the PTAB, where, in addition, they could file multiple and serial challenges against the same patent.
This gave major tech companies a major advantage. In many cases, after being sued by smaller rivals, large tech companies petitioned the PTAB to strike down patents that courts would potentially uphold and find tech behemoths guilty of infringing. Often the PTAB would do just that: It has at least partially invalidated 84% of the patents it has adjudicated in a final written decision. There are three main reasons for this: 1) the Board’s evidentiary standard is lower than in court, 2) repeat challenges are allowed — by the defendant, of course, but also by anyone who wants to challenge the validity of the patent for any reason — and 3) patent owners are burdened with about $500,000 per challenge, which Big Tech companies can afford, but startups often cannot.
In recent years, there has been some effort to correct this problem. Between 2018 and 2020, the USPTO instituted reforms aiming to prevent this type of abuse. Among other things, they specified that the PTAB can decline to review patent challenges in certain circumstances, such as when the patents are already contested in court on the same grounds and the court’s decision is imminent. (Even so, Google, Apple, Samsung, Cisco, and six other prominent mega-companies accounted for over 80% of PTAB petitions in 2021.) There’s sound logic in these reforms. After all, why should the PTAB, an administrative agency, address the same issues that an independent court already addressed and resolved?
Apple, Cisco, Intel, and Google recently sued the USPTO in an attempt to overturn those reforms, but their challenge was unsuccessful.
A New Attack on Patents
Now, however, Congress is pushing forward a bill that would effectively overturn the USPTO’s efforts to balance the patent system. Introduced by Senators Patrick Leahy (D-VT), John Cornyn (R-TX), and Thom Tillis (R-NC), it’s called the “Patent Trial and Appeal Board Reform Act.” But far from improving the legal landscape for small inventors, it will render patent owners powerless to fend off duplicative petitions at the hands of Big Tech.
The sponsors of the bill claim that it will stop Big Tech’s weaponization of the PTAB, but that couldn’t be a more inaccurate representation. Instead, if passed as currently drafted, it would strip away the very protections that were put in place to level the playing field for small inventors, such as the PTAB’s ability to decline legal challenges when a patent is already being contested in court on the same grounds, or the courts have already upheld the patent’s validity. The bill also fails to limit the number of petitions the defendant can file as long as they are all filed on the same day.
If they succeed in weakening America’s intellectual property system, it could be devastating for thousands of small, innovative startups — with disastrous consequences for the economy as a whole.
It would be a mistake for lawmakers to abet Big Tech’s efforts to weaken the U.S. system of intellectual property protections. It would make our economy less vibrant and competitive. Instead, lawmakers should reject the PTAB Reform Act and instead revise it to block multiple and serial challenges, block challenges when the courts have already upheld the patent, and upgrade the PTAB’s evidentiary standard to the courts’ more rigorous “Clear and Convincing” evidence standard.
Rampant IP infringement poses a major threat, not just to small startups, but to the U.S. economy as a whole. The very purpose of America’s patent system is to incentivize companies, entrepreneurs, and inventors and their investors to take risks on untested ideas. Unsurprisingly, VC investments in early-stage startups fell sharply in 2021–2022.
Without confidence in the enforceability of patents, there would be very little reason to take these chances. And the result would be a much less dynamic, innovative, and prosperous economy.