Earlier this year, Randall Rader, then Chief Judge of the Federal Circuit, called a group of administrative patent judges “death squads.” What had these judges done to deserve such savage criticism? They had done exactly what Congress intended: found some bad patents invalid. This week EFF filed comments with the U.S. Patent and Trademark Office (PTO) supporting the work of its administrative trial judges and urging the agency to make review of issued patents as affordable and efficient as possible.

When Congress passed the America Invents Act (AIA) in 2011, we predicted that the law would not be enough to stop the rampant abuse of patent trolls. We were right. But the AIA did include some good provisions allowing the challenge of bad patents before the Patent Trial and Appeal Board (PTAB) at the PTO. These administrative proceedings (known as covered business method review, inter partes review, and post grant review) are important because fighting a patent in court is ruinously expensive. For smaller companies, an administrative proceeding may be the only way it can afford to contest a patent. Indeed, with help from our supporters, EFF filed an inter partes review to challenge Personal Audio’s podcasting patent.

In our comments to the PTO, we make a number of suggestions about how to improve trials before the PTAB. For example, we urge the PTO to lower application fees for small businesses. Currently, fees for an instituted inter partes review are at least $23,000. This is far too high for many of the small businesses that have been targeted by patent trolls. We also argue that the PTAB should continue to construe patents broadly when comparing them to the prior art. The public notice function of patents is best served by applying the broadest reasonable construction. If a patent owner is concerned that his or her patent will be found invalid under a broad construction, he or she can add narrowing language to the claims. This protects the interests of both the patentee and the public by promoting clearer claim language.

We also respond to the hyperbolic criticism of the PTAB from Rader and others. The PTAB should not be vilified for doing its job. Congress intended for it be a place where companies could efficiently remove bad patents from the system. Since companies have a choice about whether to spend money on a challenge, it is no surprise that they have tended to challenge the worst patents. This explains why the PTAB has found so many patents invalid. Blaming the PTAB for invalidating patents that should be invalidated is like blaming critical care for having the sickest patients in a hospital.

On the whole, the PTO has done a reasonable job managing the new trial procedures created by the AIA. These procedures don’t solve all problems with the patent system, but they at least provide a cheaper alternative to litigation. We hope the PTO will continue to make administrative review effective and do even more to make it accessible.