Legislation: Restoring America’s Leadership in Innovation

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.

 

52 thoughts on “Legislation: Restoring America’s Leadership in Innovation

  1. 10

    Meh, I’m onboard except probably with section 10 and 13. Though I don’t know if I really see the point of rolling back the prior art parts of the AIA.

    Also the second part of 11 I’m iffy on, since a patent could be near permanently challenged during its lifetime and get like another 10+ years. At the very least the patent would need to be “un-collect damagesable” during that period as well. Overall I think just strike that last part, totally new stuff like that is just not even called for imo.

  2. 9

    Looks like one of our nation’s favorite glibertarians made a bit of news just being his r@ cist self today. How shocking! As if nobody knew this about our nations favorite glibertarians.

    link to lawyersgunsmoneyblog.com

    Thank goodness the glibs are so “civil”, though. LOL

  3. 8

    I wonder if the Freedom to Program Computers Act will receive similar attention.

    Nah. That’s cr@ zee talk!

    1. 8.2

      “Freedom to Program Computers”. As opposed to freedom to form metal or freedom to build any electric circuit I want. Or freedom to program a machine to make any molecule I want. Etc.

      1. 8.2.1

        “Freedom to Program Computers”. As opposed to freedom to form metal or freedom to build any electric circuit I want. Or freedom to program a machine to make any molecule I want.

        Any of the rocket scientists around here want to educate Night Wiper about the fundamental difference between a claim that prevents someone from typing instructions into a machine designed to carry out instructions for carrying out logical operations (on one hand) versus a claim that prevents someone from “forming a metal” (on the other hand)? Hint: When was the last time a patent was granted on a new cookbook? Hint 2: Why isn’t “new logic” listed among the super awesome things that are deemed to be patentable subject matter by the br@iniacs behind the proposed revision to section 101?

        1. 8.2.1.1

          Your dissembling is noted.

          See the very easy to understand, in direct and simple English Set Theory explication that I so often attempted to engage you with.

          See also your admissions against interests generated by your (rare) dabbling on substantive matters (with David Stein) in which you admitted to knowing and understanding that printed matter of a certain type fully falls within the patent eligible definition of manufacture.

          See also your invitation (still awaiting your engagement) to discuss how logic can be copyrighted (that is, your inapt version here, as you ploy the old canards such as software is like a cookbook).

          Nearly 13 and a half years of the same dreck from you, Malcolm.

          Nothing “fundamental” about that. No rocket scientist necessary to see through your bu11.

          1. 8.2.1.1.1

            Also, what’s happening now is that manufacturing machines are controlling the processes that are building all sorts of things including molecules.

            So why can’t I write a program to build any molecule I want with my automated machines? I am just putting in basic building blocks and writing a computer program.

        2. 8.2.1.2

          And what’s the difference between typing on a computer keyboard to control information processing (time, energy, and space) and say molding metal and attaching metal things.

          Why is that different?

          1. 8.2.1.2.1

            what’s the difference between typing on a computer keyboard to control information processing … and say molding metal and attaching things

            First, governmentally created restrictions on the former will generally raise First Amendment issues (because information and information processing are essential components of speech/communication). Second, until very very recently the patent system has never been used to protect “typing on a keyboard” but it’s always been used to protect “molding metal and attaching things” (why is that? see item 1). Third, try to claim a method of “typing on a keyboard” where the only difference between the prior art method and your “new” method is what youu’re typing and see what happens. Go for it. Share your experience with everyone. Viva la difference, as someone with limited knowledge of French might say. ;)

            Never ever forget this: I think computing machines are incredibly important tools. I also believe that we are limiting ourselves mightily by allowing entitled rich people to threaten everyone else with a patent suit for typing instructions into those machines. Receiving those instructions and following them, after all, is why those machines were created in the first place.

            But I realize this is all incredibly difficult for rich (and mostly white) people to accept. After all, they are The Most Important People Ever! They told us so.

            What’s baffling to me is how someone like Dennis Crouch, who has two daughters, can just sit back and watch broken people like you promote the farce (which goes hand in hand with a lot of the worst thinking on the planet today). It’s weird but certain habits of thinking are hard to break.

            1. 8.2.1.2.1.1

              Cutting through all your nonsense, we are left with that you feel that information processing is somehow second class because of typing.

              You have no problem with stirring and adding metals being eligible for patentability, but typing in software and running software is not eligible for patentability.

              And yet if I type in the right information processing method, it may run for only a second and come up with the right answer. And, often, the average person would never, ever figure out that information processing method. So according to you somehow processing information is less important than mixing metals. But you don’t tell us why. And you don’t respond to the fact that much of manufacturing is automated and is getting so more and more. That, in effect, building new metals may be as simple as loading up the raw metals and then writing a program.

              Etc.

      2. 8.2.2

        “Freedom to Program Computers” implies the state should not intervene between me and my keyboard. This is obviously not the case with this bill, which intervenes in every program I write and launch.

        1. 8.2.2.1

          Innovation that may pour forth from “your keyboard” is NO DIFFERENT than any other innovation that may pour forth from any other area of innovation.

          You seek a difference that does not exist.

          This only shows that you do not understand innovation, nor what the patent system is for.

          May I suggest that you wake from your Lemming march before you get too close to the edge of that hill?

          1. 8.2.2.1.1

            “Innovation that may pour forth from “your keyboard” is NO DIFFERENT than any other innovation that may pour forth from any other area of innovation.”

            It is different in the sense that it is protected from government interference, notably with the First Amendment.

            Why should software developer have to read the patent database? Isn’t it an intervention of state in the expression of the developer? I don’t see how this could be compatible with First Amendment.

            Furthermore, renaming them “computer implemented inventions” does not solve the issue.

            1. 8.2.2.1.1.1

              You really have no clue as to what you are talking about vis a vis the First Amendment.

              Or patent law.

              Repeat after me:
              Patents protection utility
              Copyright protects expression.

              You want to type away (without having that critical tie to utility)? All the power in the world to you.

              You want to violate protections of utility because you “can type?” Sorry, but that is NOT what the law is about (either the law concerning patents, nor the law concerning the First Amendment).

              Are you also saying that expressions protected by Copyright run afoul of the First Amendment in that some sense of “protected from government interference” controls?

              Furthermore, … does not solve the issue.

              Again – You seek a difference that does not exist. There is no “issue” where you want an issue to be,

  4. 7

    Note here that this proposal has a 0% likelihood of passing this Congress, but it has been introduced and offers an interesting discussion point.

    LOL

    Yes, pie-in-the-sky proposals from silly glibertarians are always s00per d00per “interesting”! We must discuss them!

  5. 6

    Interesting. Mostly good. I still have reservations about the IPA/AIPLA § 101 revision, as § 101 will remain an open question. But § 101 is such a hideous swamp that something’s gotta be done.

    Section 3: Repeal the first-to-file system and replace it with the old first-to-file system

    I understand the narrative about leveling the playing field to enable smaller patentees to compete with large entities that can afford a “file early, file often” strategy. But two things sold me on first-to-file.

    First: It’s my understanding that the incidence in which first-to-invent actually enabled a first-to-invent / second-to-file inventor to prevail are vanishingly small. I don’t believe in clinging to legal complexities for purely sentimental or romantic reasons.

    Second: First-to-file simplifies the definition of prior art and harmonizes the U.S. with the entire rest of the world. All things being equal, simpler legal processes make life easier for all parties.

    Section 6: Allow PTO to keep and use all of its fees collected even if not spent that fiscal year.

    I thought that fee diversion ended back during the GWB administration. Did something change that?

    Section 8: Limitations on Prior Art – Amends Section 102 to ensure that information disclosed to the U.S. Patent and Trademark Office through patent applications is not prior art that would preclude the issuance of a patent.

    I interpret this as eliminating the presumption that the “Background” section is applicant-admitted prior art. This seems largely moot, since the patent community is fully advised of that result. Many practitioners deliberately omit this section; other practitioners (including me) use it very carefully to describe the general state of the field in terms that are indisputably known.

    I suppose that the only use of the presumption is to trip up pro se applicants who aren’t aware of the characterization. If that’s the case, then the better solution is better educational of pro se inventors.

    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.”

    Hmm. I agree that the patent system betrays its clients when it veers into “patent rejection office” territory.

    But publication by default is necessary in a patent environment where technology outpaces patent examination by a factor of ten or twenty. The only winners in that system are bad actors who want to use submarine-style delay tactics to torpedo competitors.

    Section 13: Allowing best mode failure as a defense once again.

    “Best mode” defenses seem like the source of enormous volumes of litigation hair-splitting – just another way in which an accused infringer can dodge a patent based on a technicality. I’ve yet to see a good argument of why this requirement is helpful.

    1. 6.1

      The main benefit from first to invent is that it takes the pressure off the applicant and his attorney to file ASAP.

      The inventor has time to refine his invention disclosure.

      The attorney has time to go to her kid’s soccer game instead of making sure she files today instead of tomorrow.

      1. 6.1.1

        Well, how often does a day of prior art actually matter? Or even a week?

        I’m envisioning a made-for-TV-style incident in which competing inventors were dashing to the PTO for rights to the same independently-developed invention. I don’t think that we should base actual laws on it – particularly where such laws have actual, real-world costs.

        The only scenarios in which a single day matters are (a) a rush to avoid a self-inflicted bar dates (hint: don’t do that) and (b) pharmaceutical companies that eke out $$$$$$ for every extra day of patent term. Neither of those scenarios is affected by first-to-file vs. first-to-invent.

        1. 6.1.1.1

          Agreed it is rare to have a piece of prior art only be prior by a day.

          But, what do you say to your client when the PTO gives you that rejection, and the records show you had the application just about ready to file and postponed filing it by a day so you could watch your kid’s soccer game, or take your wife out to dinner, or have an affair with your paramour or some other item of life that makes it worth living?

          1. 6.1.1.1.1

            Professionals are not required to explain their personal lives to their clients.

            Always discuss timeframes up front. If you meet the timeframe, you have no obligation to explain why you didn’t do it faster and beat the competitor’s application to the PTO.

            I mean, it’s really that simple.

            1. 6.1.1.1.1.1

              So you mean put the filing timeframe in the engagement letter, because telling the client orally will mean nothing when the invalidating prior art does not surface for years.

              1. 6.1.1.1.1.1.1

                95% of my communication with my clients is email. Why woudn’t that be good enough?

                Much patent work isn’t initiated until long after the engagement letter was signed. I’ve never heard of a practitioner retroactively updating an engagement letter with the details of each and every case that’s subsequently assigned and accepted. Do you do that?

          2. 6.1.1.1.2

            have an affair with your paramour or some other item of life that makes it worth living?

            Patent maximalists never fail to amuse.

      2. 6.1.2

        The “main” benefit, you say. And there was me, at the end of a 40+ year career in FtF land, never having noticed that the “pressure” to file at the PTO was a negative feature of FtF. there are plenty of other pressures involved in patent drafting, to get to an optimal result. You could argue that the “pressure” to file is a benefit because it helps inventor and drafter to keep their minds on the job.

        To justify our profession and our fees, we wouldn’t want the job to be pressure-free, would we?

        FtI does have some benefits, notably for inventors who know nothing of how to protect their invention and do not trouble to inform themselves. I appreciate it, SG, that you do not cite that as a “benefit” of FtI.

        1. 6.1.2.1

          Max, I did not intend for my itemization of benefits to be an exhaustive list. Thanks for adding that one: that naïve inventors are given a chance to protect their inventions even if they are not experts in patent law. In fact, my experience is the very few clients have any idea about what the real patent law requirements are. I have had an inventor come to me saying “Well, this item that I have invented has now proven itself to be valued by the marketplace because I have been selling it for five years, so I guess it is worth getting a patent.” He was the inventor, and as far as I know no one else ever made or sold the item he wanted to patent, but still I had to break the bad news to him. He was faultless, but the denied him a patent because of his ignorance. Was that justice?

          1. 6.1.2.1.1

            So the remedy you propose is…what? To remove it from the public domain?

            That’s an unbelievably terrible idea.

            1. 6.1.2.1.1.1

              Wouldn’t be the first time that – for justice – items were removed from the public domain (see a discussion of this in Golan v Holder.

              Note: this is not an endorsement of such, merely pointing out that “removal” does not rise to the “Constitutional 0h n0es” that sometimes happens.

              1. 6.1.2.1.2.1.1

                Mind you – this is NOT to say that we should encourage “traps for the unwary.”

                Quite in fact, we should work to reduce or eliminate as many as possible (especially since MANY come from the “patent profanity” created by the courts).

          2. 6.1.2.1.3

            Despite making and selling for 5 years, nobody else knew anything about the invention so it would be still OK to grant its inventor, belatedly, 20 years of exclusivity? Strikes me as so implausible as to be not worth considering.

            Of course, you could advocate First to Publish, instead of FtI or FtF, but that would be a whole new Board Game. Or would it?

    2. 6.2

      Section 8: Limitations on Prior Art – Amends Section 102 to ensure that information disclosed to the U.S. Patent and Trademark Office through patent applications is not prior art that would preclude the issuance of a patent.

      I interpret this as eliminating the presumption that the “Background” section is applicant-admitted prior art. This seems largely moot, since the patent community is fully advised of that result.

      That sounds like it is repealing pre-AIA 102(e) or eliminating critical date for prior art purposes as the filing date as opposed to the publication date. This would have a MASSIVE effect on patentability.

      1. 6.2.1

        Right, which is why I don’t think that that’s what was intended. I haven’t seen any arguments for fundamentally changing the nature of prior art.

        I interpret this as “information disclosed in a patent application cannot be held as prior art against that same patent.” Basically, the disclosure itself can’t be cited in a 102/103 rejection. Of course, a prior publication should not be disqualified as prior art merely because a specification references it.

        1. 6.2.1.1

          I think David is right. And I think this is a very good idea. It would result in better written patent applications.

  6. 5

    Be interesting to see how much Google plows into trying to defeat Rep. Thomas Massie (R-Ky).

    1. 5.1

      Be interesting to see how much Google plows into trying to defeat Rep. Thomas Massie (R-Ky).

      Probably they’ll hire an army of lawyers!

  7. 4

    I thought that publishing applications was part of our treaty obligations under GATT, which is why you can’t request non-publication unless you certify that you’re not filing abroad for a patent for the same invention.

  8. 2

    Change the standard for institution from “more likely than not” to “clear and convincing evidence.” That will fix the IPR problem overnight.

    And is consistent with the standard used in federal courts.

    1. 2.1

      The standard to initiate an action to invalidate a patent in federal court is “warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.” The standard to overcome a motion to dismiss is “plausibility.” Clear and convincing only applies to winning. And it should be a preponderance of the evidence. One need only look at the issues regarding practicing the prior art to see why.

      1. 2.1.1

        ID:

        But the IPRs are meant to fix problems or errors. So clear error should be the standard. Or more likely than not that clear and convincing evidence can invalidate the patent.

        1. 2.1.1.1

          You changed horses mid stream. IPRs are intended to correct errors. Not just obvious errors. We certainly don’t need IPRs to correct obvious errors.

  9. 1

    How soon until the glib** “one-bucket” comment from Malcolm?

    ** in the oh-so-typical Accuse Others meme

    1. 1.1

      My problem with MM’s comments is that he blasts the comment section with so many long comments that it is difficult to have a dialogue.

      1. 1.1.1

        Quantity does not bother me – the lack of inte11ectual honesty and the refusal to engage on the merits is what bothers me.

        His “swagger” is a drive-by monologue that simply adds nothing but blight and dissemblings that are then quaffed like Kool-Aid by the Lemming crowd.

        1. 1.1.2.1

          You left off “blast” and “many.” Do you ever have an intellectually honest exchange?

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