Congress wants to reform a quasi-judicial tribunal that Big Tech firms have weaponized to attack their smaller rivals. Those Big Tech firms are rightfully worried that the reform legislation will prevent them from stealing smaller companies’ technologies without compensation and then exhausting the smaller firms with never-ending legal challenges at the tribunal.
Congress created the Patent Trial and Appeal Board in 2011 with good intentions. Lawmakers hoped it would be a faster, cheaper forum to resolve disputes about patent validity compared to the federal courts.
Unfortunately, Big Tech companies almost immediately weaponized the tribunal. After infringing the patents of less-established rivals, tech giants repeatedly challenge the underlying validity of those patents at the PTAB—while at the same time making the same challenges in federal court. They do this to wear down small inventors, who usually lack the resources to defend their IP against an onslaught of parallel and repetitive challenges.
To fix this problem, Congress has introduced a bipartisan bill called the PREVAIL Act, which would crack down on abusive patent challenges and ban duplicative litigation at the PTAB and in federal court.
Opponents claim that PREVAIL will somehow raise drug prices by making it easier to defend pharmaceutical patents and block the introduction of cheaper generics. But given how few drug patents are challenged at all at the PTAB, it’s clear this argument is a stalking horse for Big Tech’s real concerns about the bill. Besides, PREVAIL does not prevent any defense against a patent—it just prevents the same defense from being made multiple times, which only serves to drain resources and weaken legitimate patents.
Obviously, Big Tech lobbyists can’t advance a principled basis to defend intellectual property theft. “Let us keep stealing, it’s great!” is hardly a winning argument. So, instead, they’re trying to discredit the reform bill by arguing that it’ll lead to higher prescription drug costs.
Fortunately, new data from the U.S. Patent and Trademark Office, which we both previously ran under Presidents Barack Obama and Donald Trump, debunks this myth. From September 2012 to March 2024, only 3% of all challenges at the tribunal involved patents covering brand-name pharmaceuticals. And just 2% of challenges involved patents for biologic drugs.
Simply put, the PTAB isn’t a significant battleground for drug patents. The vast majority of PTAB challenges involve electronics and computer technology. Strong patents catalyze innovation across virtually all high-tech industries. Lawmakers can’t allow falsehoods to sink PREVAIL. Passing this legislation is critical to ensure the U.S. remains competitive in areas like artificial intelligence, quantum computing, and engineering. Startups and small firms are often at the forefront of developing such technologies, but they’ll never succeed if corporate behemoths can plunder their ideas and bully them with repetitive litigation when they fight back.
If we let the U.S. patent system deteriorate, we risk relinquishing our place as a global technological leader, endangering U.S. economic competitiveness and national security.
PREVAIL would create a level playing field where small businesses have a fighting chance against established industry giants. To defend our geopolitical standing and economic prosperity, Congress should pass it immediately—and ignore false and misleading talking points.
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