> We say “perceived” because, if a patent is bad, should it really matter who is challenging it?
The problem with this premise, of course, is that these patents are not being challenged because they are "bad", they're challenged because somebody wants to make a quick buck. They may be bad patents, because to get an IPR approved you must show that you have a fair chance of invalidating at least one claim. And statistically claims are very likely to be invalidated when IPRs are granted.
But these IPRs are filed in bad faith, so it is an abuse of the USPTO's already limited resources. So far most IPRs have been filed by parties that are actually involved in litigation and hence have strong motivation to see claims invalidated. It is yet to be seen whether the same statistics will apply for cases like these.
There does need to be a way for the EFFs of this world to challenge patents that are actively being asserted because small entities cannot afford to do so. I'd say that representing the targeted parties should be enough to give standing to file IPRs.
The problem with this premise, of course, is that these patents are not being challenged because they are "bad", they're challenged because somebody wants to make a quick buck. They may be bad patents, because to get an IPR approved you must show that you have a fair chance of invalidating at least one claim. And statistically claims are very likely to be invalidated when IPRs are granted.
But these IPRs are filed in bad faith, so it is an abuse of the USPTO's already limited resources. So far most IPRs have been filed by parties that are actually involved in litigation and hence have strong motivation to see claims invalidated. It is yet to be seen whether the same statistics will apply for cases like these.
There does need to be a way for the EFFs of this world to challenge patents that are actively being asserted because small entities cannot afford to do so. I'd say that representing the targeted parties should be enough to give standing to file IPRs.