Patent 'death squad' used by Apple and others could be unconstitutional

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The Patent Trial and Appeal Board, a U.S. body known by some a "death squad", may be declared unconstitutional by the Supreme court on Monday.

From Bloomberg:

The U.S. Supreme Court will consider whether to declare unconstitutional a system that technology companies, including Apple Inc. and Google Inc., have used to invalidate hundreds of patents and head off litigation. In an argument at the intersection of intellectual property and the separation of powers, the justices on Monday will consider a challenge to a congressionally-created board that critics have dubbed a "death squad because of its tendency to toss out patents."

According to the report the body has invalidated 2,000 patents since its inception in 2012, including nearly 200 just from Apple. Many of these patents, the report notes, are held by patent trolls, whose sole business models involve acquiring patents and then suing companies allegedly in breach of using them without licensing. The board was set up in 2011 by Congress "as a faster and cheaper alternative to litigation".

According to the report, some smaller inventors say the tool is being weaponized by larger companies:

But some smaller inventors see a chance to undercut the board, saying it's become an anticompetitive tool for large companies. The case "has the potential to shut down the PTAB, if only for a moment until Congress can do something to get it back on course," said Jim Carmichael, a former PTAB judge and now managing director of Carmichael IP. "For many inventors and patent owners, that's a very exciting prospect."

The Supreme court may reportedly go as far as to stop the board from reviewing any more patents, stripping 250 judges of their jobs in the process and possibly meaning cases would have to be reconsidered.

Apple was awarded $2.3 million in legal fees over a case that was brought to even after the relevant patents were invalidated by the body.

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