November 6, 2012 | By Julie Samuels

EFF to Patent Office: Keep Reexaminations Affordable

For many people who care about innovation, the sign of a successful patent system is one that leaves them alone. But lately, that's become nearly impossible. Instead, it's widely understood that if you have a successful business or product, you'll get hit with a patent threat or even a lawsuitan unfortunate tax on innovation. Since no one is immune, it's important that parties are able to protect their own best interests, both in the courts and at the patent office (PTO).

That's precisely why parties who do not often find themselves in front of the PTO but whose day-to-day activities may depend on what's happening there should have an avenue to get involved. They should be able to challenge patents that maybe shouldn't have been granted in the first place. And that's also why EFF joined the Computer & Communications Industry Association yesterday in filing comments with the patent office protesting fee hikes for all kinds of third-party filings that would allow those types of challenges.

You might remember that earlier this year we filed similar comments, complaining about new fees for reexamination that would total more than $17,000. The somewhat good news is that the patent office appears to have listened: that fee would now be lowered for certain small entities (including non-profits like EFF) to $7,500, a number we still think is way too high. But, even worse, the fees for other types of reexamination procedures—where third parties may challenge patents that were just granted or other specific categories of patents, or institute a more adversarial reexam process—are outrageously high (in some instances, well into the tens of thousands of dollars). And those fees do not include any repreive for small business, individuals, or public interest groups.

EFF and CCIA requested that the PTO reverse course on the dangerous trend of making third-party participation in the patent office too expensive. We also recommended that the PTO adopt a fee-shifting regime, similar to that proposed in the SHIELD Act, that would allow parties who challenge bad patents to recover some of the costs and fees associated with mounting a successful challenge. In order for the system to get better, it's important that all stakeholders' voices be heard. We hope the patent office recognizes this and institutes a new fee regime that does not set the bar to entry too high for many to participate. Also, we hope you'll make your voice heard at defendinnovation.org!


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