During the 117th Congress (2021-2022), several bills were introduced with the purported purpose of restoring inventors’ rights and fixing some of the problems generated by that Act Leahy–Smith America Invents Act (AIA) of 2011. None of these bills were passed by both the House and Senate, and most didn’t even get out of committee for a vote. A few of these bills would have actually made matters worse, so it was a good thing they didn’t pass. Only one bill was supported by the top inventors’ group, US Inventor.
The bills not supported by US Inventor were:
S.2774 – Pride in Patent Ownership Act was introduced by Senator Patrick Leahy (D-VT) on 09/21/2021. This bill looked good for either being passed by the Senate separately before Congress recesses for the holidays or passed by being attached to the National Defense Authorization Act (NDAA). The NDAA is “must pass” legislation funding the military at a time when there are credible threats of wars around the world. Attaching the Pride in Patent Ownership Act to the NDAA means it would certainly have become law. Fortunately, neither of these predictions came true.
S. 2891, The Restoring the America Invents Act, introduced by and Patrick Leahy (D-VT) into the Senate on September 29 2021 and referred to the Committee on the Judiciary, but was not voted on by the Senate before the end of the 117th Congress.
HR 5902, The Clear Patents Act, introduced by Representative Darrell Issa (R-CA) on 11/05/21 to the House. This bill was also referred to the Committee on the Judiciary, but was not voted on by the House before the final recess at the end of 2022.
S.4734 – Patent Eligibility Restoration Act of 2022 was introduced by Senator Thomas Tillis (R-NC) on 08/02/2022. This bill was referred to the Committee on the Judiciary, but was not voted on by the Senate before the end of the 117th Congress.
The only bill supported by US Inventor was:
HR 5874, Restoring America’s Leadership in Innovation Act of 2021 (RALIA), was introduced into the House by Representative Thomas Massie (R-KY) on 11/04/2021 and referred to the Subcommittee on Courts, Intellectual Property, and the Internet. US Inventor supported this bill because it was “designed to restore to Americans a patent system “as the Constitution of the United States originally envisioned it.”
Representative Massie’s press release stated, “The RALIA legislation restores to Americans a patent system as the Constitution of the United States originally envisioned it,” said Congressman Massie. “In Article 1, Section 8 of the Constitution, the Founding Fathers gave Congress the authority to protect the discoveries of inventors. Specifically, they created a patent system to ‘promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.’ I am sad to say that this bill was also not voted on by the House before the end of the 117th Congress.
The above bills introduced in 2021 were discussed in more detail in my blog article, “Inventors Rights Must be Restored” published by Made in America Movement in January 2022.
What many people do not realize is that bills not passed by the end of the Congressional session, in this case the 117th, are considered “dead” and must be reintroduced in the session of the next Congress, which is now the 118th Congress (2023-2024).
Thus far, none of these bills have been reintroduced by their sponsors, but one of the bills introduced in the 117th Congress has been re-introduced recently.
S. 2140: Patent Eligibility Restoration Act of 2023 was introduced by Senators Thomas Tillis (R-NC) and Christopher Coons (D-DE) on 6/22/2023. The brief description states, “To amend title 35, United States Code, to address matters relating to patent subject matter eligibility, and for other purposes.”
The need for this bill was provided in the “Findings” section:
- “patent eligibility jurisprudence interpreting section 101 of title 35, United States Code, requires significant modification and clarification….
- the Supreme Court of the United States and other courts created judicial exceptions to the wording of that section, thereby rendering an increasing number of inventions ineligible for patent protection…
- Efforts by judges of district courts and courts of appeals of the United States to apply the exceptions described in paragraph (2) to specific circumstances have led to extensive confusion and a lack of consistency— throughout the judicial branch of the Federal Government and Federal agencies; and among patent practitioners…
- Many judges of the United States Court of Appeals for the Federal Circuit and of various district courts of the United States have explicitly expressed the need for more guidance with respect to the meaning of section 101 of title 35…”
“Under this Act, and the amendments made by this Act, the state of the law shall be as follows:
(A) All judicial exceptions to patent eligibility are eliminated.
(B) Any invention or discovery that can be claimed as a useful process, machine, manufacture, or composition of matter, or any useful improvement thereof, is eligible for patent protection, except as explicitly provided in section 101 of title 35, United States Code, as amended by this Act, as described in subparagraphs (D) and (E) of this paragraph.”
The statements describing what the bill will do sound good at first reading, but the “devil is in the details” of subparagraphs (D) and (E), as well as the amendments to Section 3 of the bill – Patent Eligibility.
This bill was reviewed in detail during weekly Zoom meetings held by US Inventor for several weeks after the bill was introduced in June. These reviewers included retired judges, patent attorneys, and inventors. As a result of this intensive review, US Inventor released a policy paper, titled “PERA Starts by Making Nearly All Inventions Implemented in Software Patent Ineligible:”
“PERA abrogates all judge-made exceptions, including the abstract idea in its preamble (however,
not in the law), yet it introduces new exceptions disqualifying entire swaths of technology as ineligible for patent protection. An invention is ineligible if:
‘‘(B)(i) Subject to clause (ii), a process that is substantially economic, financial, business, social, cultural, or artistic, even though not less than 1 step in the process refers to a machine or manufacture.’
Nearly any invention can be categorized as economic, financial, business, social, cultural, or artistic. Most inventions implemented in software are claimed as a process. This extraordinarily broad language means that inventions implemented in software are ineligible for patent protection right from the starting gate.”
According to the U S Inventors end of the year report, “The Patent Trial and Appeal Board (PTAB) has cancelled claims in 84% of the 2,500+ patents reviewed since 2011 and most inventors do not have a half a million dollars necessary to fund a legal defense.”
This is why US Inventor policy paper states, “PERA Must Remain a Vehicle for Section 101 Debate.
Judge-made law regarding Section 101 eligibility is severely restricting U.S. innovation, allowing our adversaries like China as well as others to take the lead in global innovation. This is severely damaging U.S. national and economic security.
Congress must fix Section 101 correctly. The influence of powerful lobbies must be leveled by arguing the merits of the legislation openly and transparently in Congress.
The authors of PERA must provide a clear and sound public policy justification for making such huge swaths of technologies ineligible for patent protection where there are no similar restrictions in other countries.
Once Congress agrees to a public policy position on Section 101, then the words of PERA must be precisely defined to ensure that the policy is effectuated in legislation, leaving no ambiguity for judge-made law to override it.”
The paper concludes, “For the foregoing reasons, US Inventor opposes PERA as written, but PERA should not die. It presents a valuable opportunity to initiate open and transparent debate in Congress so that the U.S. public policy regarding patent eligibility can be properly formed, and legislation can be crafted to effectuate that public policy.”
If you support patent rights you can sign the Inventors’ rights Resolution here. You can also join US. Inventors as a supporting member here. If you have the time, you can also attend US Inventor’s first annual conference in Washington, D.C. on October 19-21, 2023 to celebrate years 10 years of work. There are over twenty confirmed speakers, and the plan is to bring you an event full of presentations, panel discussions, and plenty of networking opportunities. The tickets include access to all presentations, discussions, and informative opportunities, as well as access to event receptions, breakfasts, and dinner. More Details and Register: www.usinventor.org/usi-conference
