by Dennis Crouch
Patent reform legislation continues its slow pathway through Congress. The leading bill is the STRONGER Patents Act of 2019 (“‘Support Technology and Research for Our Nation’s Growth and Economic Resilience”) with identical bills pending in both the House and Senate. H.R.3666; S. 2082.
Upcoming Hearing: September 11, 2019 held by the Intellectual Property Subcommittee of the Senate Judiciary Committee with testimony from: Bradley Ditty (InterDigital); Prof. Mossoff (Scalia Law); Prof. Cotter (Minnesota); Dan Lang (Cisco); Josh Landau (CCIA); and Eb Bright (ExploaMed). [Written testimony will be available on the Hearing website sometime on the 11th.]
The Bill is designed to strengthen the power of an individual patent — making it harder to invalidate and easier to enforce as follows:
- AIA Trials: PTAB must require clear and convincing evidence before invalidating an issued patent;
- AIA Trials: Petitioner must have standing (business or financial reason to challenge a patent’s validity);
- AIA Trials: Bar multiple trials on the same claims; Bar multiple petitions on the same patent by a single petitioner.
- AIA Trials: Allowing petitioner to appeal most insitution question; barring appeal of institution denials;
- AIA Trials: Splitting institution judges from trial judges;
- Enforcement: Presume that infringement causes irreparable harm and that the remedy at law is inadequate.
- . . .
[Read the Bill]
A group of law professors have submitted a letter to Congress arguing against the STRONGER Patent Act. The core argument of the letter is that the inter partes review (IPR) system “has proven to be a robust and efficient check on patent validity, and has had a positive impact across industries, including high-tech, Main Street, and pharmaceuticals, where invalid patents can keep drug prices high.” [Read it here] Prof. Cotter signed the letter; Prof. Mossoff did not.