Eight patent-related bills intended to restore U.S. innovation prowess by making invention rights more reliable and redress for infringement less arduous have gone to Capitol Hill in the past five years.
The bipartisan RESTORE Patent Rights (Realizing Engineering, Science, and Technology Opportunities by Restoring Exclusive Patent Rights) introduced on July 30th can in a single sweeping move help to repair the U.S. patent system in decline since 2012 and restore the nation’s innovation competitiveness.
The over-correction wrought by the American Invests Act (AIA), which established the Patent Trial and Appeal Board (PTAB) has deeply hurt US innovation, inventors and businesses. Despite apparent success eliminating poorly issued patents, AIA/PTAB has undcut U.S. competitiveness in innovation by making it virtually impossible to stop infringement.
If the U.S. continues issuing weak, uncertain patents (copyrights, too), and disputes are heard by patent-dubious courts, the nation will find itself trying to catch up rather than lead as it has for most of the 21st, 20th and 19th Centuries.
Necessary Repair
The system is in need of repair, mainly in the form of clarification, and it is finally being recognized. The negative, anti-patent and “fair use” narratives are being perpetuated for self-interest by business who refuse to pay for the property they use and the Congress needs to act. There is increasing inventor and tech company support, even as the general population has not been properly educated.
The RESTORE Patent Rights Act would undo the damage of the eBay decision by returning to patent owners a rebuttable presumption that an injunction is warranted after a court makes a final ruling that their rights are being infringed. This would deter predatory infringers and restore meaning to the right to exclude.
“Under our current system, it is cheaper for large companies to steal patented technologies from our inventors and entrepreneurs than to license those technologies lawfully,” said Senator Coons, a co-sponsor of the bill.
The RESTORE Patents Act was formally introduced on July 30th by U.S. Senators Chris Coons (D-Del.) and Tom Cotton (R-Ark.) The House companion bill was introduced simultaneously by Representatives Nathaniel Moran (R-Texas) and Madeleine Dean (D-Pa.).
“The Act a rare bipartisan, bicameral bill that would restore the presumption that courts will issue an injunction to stop patent infringers, strengthening protections for U.S. inventors, entrepreneurs, universities, and startups,” explains Louis Carbonneau, a respected patent licensing and transaction expert.
“In short, it aims at abrogating the Supreme Court decision in eBay that pretty much eliminated injunctions for patent cases, thus removing most of the leverage patent owners once yielded against infringers.”
PERA and PREVAIL
Slowly winding their way through Congress are two other pro-IP bills which may never see the light of day, the Patent Eligibility Restoration Act (PERA) and the Promoting and Respecting Economically Vital American Innovation Leadership (PREVAIL) Act.
Combined, the two bills aim to strengthen IP protections by clarifying and expanding patent eligible subject matter, reducing duplicative litigation, and raising the standard for invalidating patents.
Some innovation proponents believe these bills do not go far enough, while others say they will enable bad actors. China, Germany and other nations make it much easier to obtain patent injunctions.
It is widely known there are far more bad actors among infringers than patent holders.
Image source: savetheinventor.com