Intellectual Property Revolution: Modernizing Patent Law for the AI Era

The strongest good-faith objection comes from the same direction as Heritage's institutional critique: broad third-party standing to petition for inter partes review has, in practice, let well-resourced incumbents file petition after petition against the same small inventor's or university's patent, a pattern critics, including a former Federal Circuit chief judge, have called PTAB acting as a "patent death squad." If that's the dominant practical effect of broad standing, then defending it primarily protects the same large incumbents this issue elsewhere treats as the target of patent-troll suits, not the small inventors this issue claims to serve, and PREVAIL's narrower standing rule is a more honest match for who the tool should serve.

The party's answer is to separate the abuse from the tool rather than defend unlimited petitioning. Proposal 4, barring duplicate petitions that re-litigate grounds already rejected against the same patent, answers the "death squad" pattern directly: no patent holder, large or small, has to survive the identical argument twice. What Proposal 4 does not do is remove standing from the parties Heritage's critique isn't about, the nonprofits, open-source defense groups, and future targets whose only realistic point to challenge a bad patent is before they've been sued, when the fight is still cheap enough to bring. The scale of the two problems settles which one the standing rule should be built around: non-practicing entities filed 88.3% of the high-tech patent lawsuits Unified Patents tracked in district courts in the second quarter of 2024, a market broad standing exists to check; there is no comparably documented pattern of biotech and university patents being exhausted by serial incumbent challenges at that scale. The position holds: cap the specific abuse with Proposal 4, leave the checking mechanism itself intact.

Startups and small tech companies targeted by non-practicing-entity suits bear an acute, concentrated cost today, and this issue's rejection of PREVAIL's standing restriction (Proposal 3) is built to protect them, at the cost of leaving PTAB open to the incumbent-abuse pattern named in the Steelman above. That cost is not left unaddressed: Proposal 4's bar on duplicate petitions is this issue's specific answer for the individual-inventor and university population absorbing it, not a residual gap.

Individual inventors, university tech-transfer offices, and small biotech firms bear a cost under continued broad third-party standing: their patents stay open to challenge from parties with no direct stake in the outcome, including incumbents with the resources to file repeatedly. This issue accepts that cost because the documented alternative, PREVAIL's fix, would remove the same challenge tool from the population currently absorbing the larger, better-measured harm, non-practicing-entity litigation against startups. Proposal 4 is the deliberate mitigation this position builds in for exactly that population.

Patent applicants in AI, software, and diagnostics who wanted PERA's broader Section 101 rewrite bear a cost from this issue's narrower alternative: some claims that would clear examination under PERA's text will still fail the technical-improvement standard this issue proposes instead. This issue accepts that cost to avoid PERA's unmodified-gene loophole and near-automatic software eligibility, the specific problem the Alice and Myriad decisions were written to stop.

Non-practicing entities and the litigation-finance arrangements that back them lose the leverage PREVAIL and RESTORE would hand them. That is not treated here as a regrettable side effect; it is Proposal 3's intended result.