Two new bills have been introduced in Congress that would restore our broken patent system. These bills aim to address longstanding issues with the patent system and ensure fair treatment for inventors and small businesses.
Ever since the America Invents Act of 2011 was passed by Congress, our patent system was changed from being the best in the world to one that has nearly destroyed inventors’ rights.
Today, inventors suffer massive predatory infringement by large multinational corporations, including Chinese controlled multinationals, have their patents declared ineligible for patent protection because of being considered an “abstract idea,” and are denied their day in court to sue patent infringers. This is stifling the innovation engine of the United States.
During the 116th (2019-2020) and 117th Congress (2021-2022), several bills were introduced with the purported purpose of restoring inventors’ rights and fixing some of the problems generated by the America Invents Act of 2011. None of these bills made it out of committee for a vote by the House or Senate.
Two bills were introduced last year into the current Congress (118th 2023-2024):
- S. 2140: Patent Eligibility Restoration Act of 2023 (PERA) was introduced by Senators Thomas Tillis (R-NC) and Christopher Coons (D-DE) on 6/22/2023
- S.2220 – PREVAIL Act introduced by Senator Chris Coons (D-DE) on 7/10/2023
Neither of these bills have made it out of committee as yet for a vote by Congress, but that is good news as neither bill sufficiently restores inventors’ rights.
The two new bills are HR 8134, the Restoring America’s Leadership in Innovation Act (RALIA), introduced by Rep. Thomas Massie (R-KY) and Rep. Marcy Kaptur (D-OH) on 4/16/2024 and HR8132, the Balancing Incentives Act (BIA) introduced by rep. Marcy Kaptur (D-OH) and Rep. Thomas Massie (R-KY) also on 4/16/2024.
RALIA seeks to revitalize patent protection by restoring injunctive relief, eliminating confusing judicially created eligibility tests, and abolishing the Patent Trial and Appeal Board (PTAB). By strengthening patent rights and encouraging innovation across critical technology fields, RALIA will help restore America’s leadership in innovation.
RALIA Reverses the effects of several Supreme Court decisions and of the America Invents Act, largely repairing most of the erosion of US patent rights accumulated over the last several decades. Full details below.
I participated in the weekly conference call with US Inventors members on May 8, 2024 when founder Paul Morinville highlighted some of the key things RALIA would do:
- “Repeal ‘first to file’ and restore ‘first to invent’ as the criterion for granting a patent
- Abolish the Patent Trial and Review Board (PTAB)
- Restore the means of defending a patented invention against infringers: in court.
- Restores injunctive relief to stop infringers from making and marketing the product being infringed
- Declares that patents are private property
- Abolishes inter partes review and post-grant validity proceedings
- Prohibits publishing patents until issued
- Eliminates fee diversion from the U.S. Patent Office to the General Fund
- Fixes the problems with abstract ideas, medical diagnostics, and gene therapy”
He also said that The Balancing Incentives Act (BIA) aims to restore balance to our patent system and promote innovation. “BIA addresses issues with the PTAB, ensuring inventors receive fair treatment and protection of their intellectual property rights. BIA requires the patent owner’s consent for a PTAB review. By adding this fundamental right, the Bill aims to realign the PTAB with its original purpose as an alternative to federal court proceedings and a fair venue for all parties involved, rather than a mechanism incentivized for patent invalidation.”
Congresswoman Kaptur posted a paper, titled “At-A-Glance: Balancing Incentives Act & Restoring America’s Leadership in Innovation Act” that goes into more detail of why these bills are needed and what they would do.
The paper states:
“American innovation is falling behind the rest of the world. In 2018 patents filed per capita fell behind China for the first time since data was first collected in 1980. Much of that is because protections for American inventors is slipping. The time, money, and energy invested in creating an invention that can be marketed and sold or used to create and sell a new product is not worth it if the invention can be easily taken away. Originally, patents were tried in court. In 2011 the Patent Trial and Appeal Board was formed, and cases that challenge patents have since been deferred to that board. In FY23, PTAB completely invalidated 28% (see slide 11) of patents put before them; another 38% settled, were partly invalidated, came to mixed outcomes, or ended in a request for adverse judgement. Only 27% of cases were denied or dismissed, and only 7% determined to be all patentable. For solely those cases in which a written decision was reached, only 17.1% of patent claims were fully upheld – an 82.9% full or partial invalidation rate. (Fully invalidated: 67.5%, partly invalidated 15.4%.”
The paper also describes what a few specific provisions of the bill would do:
- “Remedy eBay v. MercExchange:
- Reverse the US Supreme Court’s ruling in Oil States v. Greene’s Energy Group:
- Restore the pre-America Invents Act one-year grace period.
- Limit the consideration of information disclosed to the PTO as ‘prior art.’
- Restore the requirement of naming the best mode or preferred embodiment in a patent application.
- Remedy adverse effects from Bilski v. Kappos, Association for Molecular Pathology v. Myriad Genetics, Mayo Collaborative Services v. Prometheus Laboratories, and Alice Corp. v. CLS Bank:
- Restore and clarify patentability of certain scientific discoveries and software inventions.
- Ensure judicial review and the right to de novo judicial review for patent validity determinations.
- Remedy Impression Products v. Lexmark International:
- Clarify property rights in the transferability of patents, including by licensing.
- Strengthen the presumption that an issued patent is valid and protect patents against claims of invalidity, rather than the other way around”
The paper describes what the Balancing Incentives Act (BIA) would do:
“BIA would not abolish the PTAB as the Restoring America’s Leadership in Innovation Act (“RALIA,” below) would, but instead effectively give patent owners the option to have their patents challenged either in court or at the PTAB. (Relevant USC is amended: “The owner of the patent consents to the filing of the petition.” – Referring to a petition to have a case heard at the PTAB rather than in court.) This will naturally encourage PTAB to demonstrate its legitimacy without micromanaging USPTO or the PTAB. Patent owners will choose to continue to work with PTAB so long as they view it as fair and legitimate. This bill is compatible with RALIA (for which we also advocate sign-on) in that it presents a method to balance the PTAB’s authority with court authority while leaving all other provisions in RALIA untouched.”
On March 12,2024, James Edwards, Executive Director of Conservatives for Property Rights wrote a letter to Rep. Thomas Massie and rep. Marcy Kaptur expressing their support for HR 8134 (RALIA) because of the following:
“The Restoring America’s Leadership in Innovation Act would strengthen private property rights in one’s inventions and discoveries. The bill would broadly reverse the antipatent onslaught of recent years. RALIA would counter the ongoing assault by courts, Congress, the Administrative State, and patent-infringer special interests. The harm done to our patent system is reflected in the fact that global venture capital (VC) invested in the United States has fallen. The U.S. share of VC dropped from 82% in 2004 to 49% in 2021 as the Supreme Court’s eBay ruling spares patent infringers from injunction, the Alice-Mayo framework causes patent-eligible unpredictability, and enactment of the America Invents Act’s (AIA) led to infringers’ greater ability to cancel issued patents, game the litigation system, and disrupt commercialization of inventions. Also, patent licensing royalty rates have dropped over the same period.
In short, our patent system desperately needs the restoration of its traditional strengths…”
This letter was cosigned by the leaders of U.S. business & Industry Council, Tradition, Family, Property Inc., Les Government, Let Freedom Ring, AMAC Action, American for Limited Government, Taxpayers Protection Alliance, 60 Plus Association, Family PAC Federal, Tea Party Patriots Action, The Committee for Justice.
We need your help to enact critical patent reform legislation that will protect inventors’ rights and promote American innovation. As a member of US Inventor and Secretary of the board of the San Diego Inventors Forum, I understand the importance of safeguarding intellectual property and fostering an environment where inventors can thrive. We are calling on you to take action today by contacting your Congressional Representative and asking them to sign on as a co-sponsor and support both HR 8134, the Restoring America’s Leadership in Innovation Act (RALIA), and HR8132, the Balancing Incentives Act (BIA).
If you don’t how who your Congressional Representative is, you can find who he/she is using your zip code at this link. Then, you can call the U.S. House switchboard at (202) 224-3121 to get connected to the office of your Representative.