Patent Proposals in Congress

March 21, 2018
Post by Kirk M. Hartung

Since the creation of patent reviews at the Patent Office Trial and Appeal Board (PTAB) by the America Invents Act of 2011, a very high percentage of reviewed patents have been declared invalid. Now, a bill has been introduced in the House of Representatives which could change these statistics. The bill also could revive issuance of injunctions against adjudicated infringers, which has been very difficult in recent years in view of a 2006 U.S. Supreme Court decision.

The sponsors of the bill are Bill Foster, an Illinois Democrat, and Steve Stivers, an Ohio Republican. The bill’s acronym is STRONGER, for Support Technology and Research for Our Nation’s Growth and Economic Resilience.

Among other things, the bill would raise the burden of proof for the challenger at the PTAB from a preponderance of evidence to clear and convincing evidence, which is the same standard for proving invalidity in a court proceeding. The bill also adds a prerequisite that a PTAB challenge can only be filed by a party who has been sued for infringement.

The sponsors assert that the current patent system has been weakened, and needs modification to encourage research and innovation. They also seek to provide the same opportunities to independent inventors and small business that bigger patent owners enjoy. Their goal is a patent system that is cheaper, faster, and fairer for everyone.

Reaction to the proposed bill is generally divided by industries. The pharma and biotech industries support the bill’s changes strengthening the patent owner’s ability to enforce their patent rights against accused infringers, and thus encourages investment in innovation. In comparison, the tech industry prefers the current patent environment, and believe the bill will encourage litigation abuse. Other opponents think the bill undermines the fight against frivolous infringement litigation.

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