by Dennis Crouch
A new legislative proposal (H.R. 6264) from Rep. Thomas Massie (R-Ky) is designed to largely roll-back the America Invents Act. [FinalPatentBill][SectionBySection]. Massie is an MIT Engineer, Inventor, and largely Libertarian in his approach to legislation.
Although libertarians are somewhat divided on the role of intellectual property rights, Massie is firmly in the camp of treating them as strong property rights. Thus, the proposal begins with several findings of Congress:
- The [AIA] and several decisions of the Supreme Court have harmed the progress of Science and the useful Arts by eroding the strength and value of the patent system.
- The United States Government exists to protect life, liberty, and property, which includes intellectual property.
- A United States patent secures a private property right to an inventor.
- This Act restores the patent system as envisioned by the Constitution of the United States.
Title: Restoring America’s Leadership in Innovation Act of 2018
The basic provisions here are as follows (although this is only a high-level review):
- Section 3: Repeal the first-to-file system and replace it with the old first-to-file system, the one-year grace period and a statement that “a person shall be entitled to a patent where the inventor is first to conceive of the invention and diligently reduces the invention to practice.”
- Section 4 and 5: Abolish the AIA Trials and revert the PTAB to the BPAI — noting that AIA Trials have “harmed the progress” by “invalidat[ing] patents and an unreasonably high rate.” Note, that the provision would not re-start Inter Partes Reexaminations.
- Section 6: Allow PTO to keep and use all of its fees collected even if not spent that fiscal year.
- Section 7: Amend eligibility to essentially adopt the IPO/AIPLA proposals.
- Section 8: Limit certain prior art if derived from the applicant.
- Section 9: Add the following statement: “A patent right is a private property right secured to an inventor upon issuance of the patent that shall only be revoked by a court ruling in a judicial proceeding, unless the patent owner consents to an administrative or other procedure. . . . patents shall be recognized as private property rights.” The provision is also designed to allow for full freedom-of-contract, including licensing without exhaustion.
- Section 10: abolishes publication of patents except upon request by the patent applicant with the explanation that “automatic publication of patent applications . . . has harmed the progress of science and the useful arts by creating ‘‘prior art’’ by operation of law that prevents a patent owner from applying for a patent on the same invention if a patent does not issue.”
- Section 11: Establish strong presumption of validity to be applied whenever a patent is challenged (including administrative proceedings); Toll the patent term during any patent challenge.
- Section 12: Overrules eBay v. MercExchange by creating a presumption that any infringement creates irreparable harm.
- Section 13: Allowing best mode failure as a defense once again.
Note here that this proposal has a 0% likelihood of passing this Congress, but it has been introduced and offers an interesting discussion point.