Ever since the Leahy–Smith America Invents Act (AIA) was passed in 2011, there have been bills introduced in Congress with the purported purpose of restoring inventors’ rights and fixing some of the problems generated by that Act. None of these bills were passed by both the House and Senate, and most didn’t even get out of committee for a vote. A few of these bills would have actually made matters worse, so it was a good thing they didn’t pass.
Besides changing our patent system from a “first to invent” to a “first to file,” the “America Invents Act” also created the Patent Trial and Review Board (PTAB) which has nearly destroyed inventors’ rights. According to the U S Inventors end of the year report, “The Patent Trial and Appeal Board (PTAB) has canceled claims in 84% of the 2,500+ patents reviewed since 2011 and most inventors do not have a half a million dollars necessary to fund a legal defense.”
In the 117th Congress, three new bills have been introduced with the purported purpose of again fixing the problems.
The Clear Patents Act
HR 5902, The Clear Patents Act, introduced by Representative Darrell Issa (R-CA) on 11/05/21 to the House. The stated purpose is “To amend title 35, United States Code, to clarify the relation of Inter Partes Review proceedings and Post-Grant Review proceedings to other administrative proceedings, and for other purposes.” Since Rep. Issa was an original co-sponsor of the America Invents Act, bills related to patents that he introduces are not beneficial to inventors.
This bill would amend Section 315, by adding at the end the following:
“(f) Relation to other administrative proceedings – If the Director institutes an inter partes review of a patent, any proceeding before a Federal agency (as that term is defined in section 201) that would be materially affected by one or more of the claims of the patent being canceled under such review shall have stayed until a final written decision by the Board is issued under such review or such review is otherwise terminated. “
As an example of this type of action, U S Inventors commented, “The ITC can be effectively used to stop infringing products from coming into America. Issa’s bill allows any ITC action underway to be stopped if a PTAB action is instituted, and only continued after the PTAB action is concluded (if the patent remains intact).”
The Restoring the America Invents
S. 2891, The Restoring the America Invents Act, introduced by Senators John Cornyn and Patrick Leahy into the Senate on September 29, 2021. After the introduction, Sen. Mike Crapo (R-ID), Sen. Amy Klobuchar (D-MN), Sen. Richard Blumenthal (D-CT), and Sen. James Risch, (R-ID) have signed on as co-sponsors. This bill would also “amend title 35, United States Code, to address matters relating to the Patent Trial and Appeal Board of the United States Patent and Trademark Office, and for other purposes.”
This bill is too complicated to quote any of the clauses, but basically, it changes many of the procedures and rules of inter partes reviews and PTAB cases.
U S Inventor comments that “Leahy’s new bill greatly expands the grounds available for Big Tech/Big Corp to engage in IPR proceedings against the lesser financed small inventor or startup.” It would basically strengthen the PTAB – one provision explicitly allows government agencies to use the PTAB to invalidate patents!
It is my opinion that the above bills are bad legislation and would be harmful to inventors’ rights.
I was a mentor for San Diego’s CONNECT Springboard accelerator program from 2015 – 2018 and am a director on the board of the San Diego Inventors Forum. I work with inventors designing new products or breakthrough technologies to help them select the best processes and sources for their new products.
Inventors in the San Diego region have the opportunity to compete in the San Diego Inventors Forum annual invention contest for the best new consumer product or best new technology. All contestants must have applied for at least a provisional patent before they can participate. The future success of their product or technology is contingent upon their having a patent they can protect from infringement. Their ability to raise the financial investment they need to bring their product to the marketplace depends upon their being able to protect their patent.
Why is this important?
Because most new technologies, especially break-through or disruptive technologies, come from individual inventors who either start a company or license their technology to companies that are more able to take them to the market. Inventors must have the assurance that their invention will be protected by a patent because no investor will take the risk of investing in a product or technology that cannot be protected.
Fortunately, there is one bill that would benefit inventors and restore America’s patent system to what it was before the passage of the America Invents Act.
HR 5874, the “Restoring America’s Leadership in Innovation Act of 2021” (RALIA), was introduced into the House by Representative Thomas Massie on 11/04/2021 and referred to the Committee on the Judiciary. Original cosponsors of RALIA include Rep. Louie Gohmert (R-TX), Rep. Paul Gosar (R-AZ), and Rep. Tom McClintock (R-CA). Rep. Massie’s Press Release announced “the introduction of patent reform legislation designed to restore to Americans a patent system “as the Constitution of the United States originally envisioned it.”
“The RALIA legislation restores to Americans a patent system as the Constitution of the United States originally envisioned it,” said Congressman Massie. “In Article 1, Section 8 of the Constitution, the Founding Fathers gave Congress the authority to protect the discoveries of inventors. Specifically, they created a patent system to ‘promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.’ Regrettably, Congress’s 2011 enactment of the Leahy-Smith ‘America Invents Act’ has worked in concert with several Supreme Court decisions to erode this protection’s strength and value.”
“As the Constitution intends, RALIA restores patent protection to inventors by awarding patents on a ‘first to invent’ basis rather than the more recently adopted ‘first to file’ standard,” Congressman Massie continued. “A return to a ‘first to invent’ patent protection system ensures that inventors and the investors who back them can be confident that their innovative work and ideas will be safeguarded. Patents should protect those who innovate, not those who win the race to the patent office.”
U S Inventors supports Congressman Massie’s RALIA legislation, along with “organizations including the American Business Defense Council, American Conservative Union, Americans for Limited Government/Americans for Limited Government Foundation, Conservatives for Property Rights, Eagle Forum Education & Legal Defense Fund, Let Freedom Ring, 60 Plus, the Small Business Technology Council, U.S. Business & Industry Council, U.S. Inventor, and Vote America First.”
I join U S Inventors in urging inventors, entrepreneurs, and anyone concerned about rebuilding American manufacturing to call the Congressional switchboard number, 202-224-3121 and ask to be connected to their Representative and Senators. Then, tell the office staff that you want your Representative to support and co-sponsor the HR 5874, the “Restoring America’s Leadership in Innovation Act of 2021, because this bill is important for his or her constituents and for America. Tell the staff you are opposed to HR 5902, the “Clear Patents Act,” because it will harm inventors and American innovation by allowing China to continue flooding our market with pirated products. Tell the staff of your Senators that you are opposed to S. 2891,” The Restoring the America Invents Act.”
Lastly, please sign the Inventor Rights Resolution — together we can help restore patent protection for inventors.