<\/p>\n\n\n\n
On\nJuly 10, 2019, H.R. 3666<\/a>, the\n\u201cSTRONGER Patents Act of 2019,\u201d was introduced in Congress and referred to the\nCommittee on the Judiciary and the Committee on Energy and Commerce. The\npurpose of the Act is \u201cTo strengthen the position of the United States as the\nworld\u2019s leading innovator by amending title 35, United States Code, to protect\nthe property rights of the inventors that grow the country\u2019s economy.\u201d<\/p>\n\n\n\n This\nbill is a reintroduction of the Stronger Patents Act of 2017 that never got out\nof committee. It has a long list of\nbi-partisan co-sponsors: Rep. Stivers (R-OH),\nRep. Mr. Foster (D-IL), Rep. McClintock (R-CA), Rep. Vel\u00e1zquez (D-NY), Rep.\nBabin (R-TX), Rep. Burgess (R-TX), Rep. Hill (R-AK), Rep. Huizenga (R-MI), Rep.\nJoyce (R-OH), Rep. King (R-NY), Rep. Norman (R-SC), Rep. Watson Coleman (D-NJ),\nRep. Suozzi (D-NY), Rep. Peters (D-CA), Rep. Gosar (R-AZ), and Rep. Davidson\n(R-OH). <\/p>\n\n\n\n The\n\u201cFindings of Congress\u201d in the Act make several points similar to those made in\nthe \u201cFindings of Congress\u201d for H.R. 5478<\/a>, the\nInventor Rights Act, regarding the importance of patents as \u201cthe foundation for\nthe exceptional innovation environment in the United States\u201d and \u201can essential\npart of the country’s economic success.\u201d It includes reference to the fact that\n\u201cstrong patent protection improves the chances of success for small companies\nand increases their chances of securing financing from investors.\u201d <\/p>\n\n\n\n Of\nparticular note, the \u201cFindings\u201d state that \u201cunintended consequences of the\ncomprehensive 2011 [America Invents Act] reform of patent laws are continuing\nto become evident, including the strategic filing of post-grant review\nproceedings to depress stock prices and extort settlements, the filing of\nrepetitive petitions for inter partes and post-grant reviews that have the\neffect of harassing patent owners, and the unnecessary duplication of work by\nthe district courts of the United States and the Patent Trial and Appeal Board;\u201d\n<\/p>\n\n\n\n This\n\u201cFinding\u201d refers to the abuse of invalidating patents by the Patent Trial and\nAppeal Board mentioned in my blog article<\/a> of February\n12th<\/sup> about the Inventor Rights Act.<\/p>\n\n\n\n In\naddition, the \u201cFindings\u201d point out that \u201cefforts by Congress to reform the\npatent system without careful scrutiny create a serious risk of making it more\ncostly and difficult for legitimate innovators to protect their patents from\ninfringement, thereby weakening United States companies and the United States\neconomy.\u201d<\/p>\n\n\n\n The\nStronger Patents Act of 2019 is much more complex that the simple one-page bill\nfor the Inventor Rights Act. Since I am\nnot a lawyer, I do not have the legal expertise to analyze each of the specific\nclauses of the Act. However, I will\nhighlight certain sections that are particularly beneficial to inventor rights\nand attempt to correct specific problems created by the America Invents Act of\n2011.<\/p>\n\n\n\n For example, in \u201cSEC.\n102. Inter partes review,\u201d the proposed amendments would help\nreduce the invalidation of patents that is now occurring in PTAB cases. The bill\nstates:<\/p>\n\n\n\n \u201c(A) each challenged claim of a patent, or claim\nproposed in a motion to amend, shall be construed as the claim would be\nconstrued under section 282(b) in an action to invalidate a patent, including\nby construing each such claim in accordance with\u2014 <\/p>\n\n\n\n (i) the ordinary and customary meaning of the claim\nas understood by a person having ordinary skill in the art to which the claimed\ninvention pertains; and<\/p>\n\n\n\n (ii) the prosecution history pertaining to the\npatent; and<\/p>\n\n\n\n (B) if a court has previously construed a challenged\nclaim of a patent or a challenged claim term in a civil action to which the\npatent owner was a party, the Office shall consider that claim construction.\u201d<\/p>\n\n\n\n The\n\u201cBurden of proof.\u2014Section 316(e) of title 35, United States Code,\nis amended to read as follows:<\/p>\n\n\n\n (1) PRESUMPTION\nOF VALIDITY.\u2014The presumption of validity under section 282(a) shall apply to a\npreviously issued claim that is challenged during an inter partes review under\nthis chapter.<\/p>\n\n\n\n (2) BURDEN\nOF PROOF.\u2014In an inter partes review instituted under this chapter, the\npetitioner shall have the burden of proving a proposition of unpatentability of\na previously issued claim by clear and convincing evidence.\u201d<\/p>\n\n\n\n One of the important amendments in Sec. 103. Post Grant\nReview, adds the following new subsection: \u201c(d) Persons that may petition.\u2014<\/p>\n\n\n\n (2) NECESSARY CONDITIONS.\u2014A person may not file with the\nOffice a petition to institute a post-grant review of a patent unless the\nperson, or a real party in interest or privy of the person, demonstrates\u2014 <\/p>\n\n\n\n (A)\na reasonable possibility of being\u2014 <\/p>\n\n\n\n (i)\nsued for infringement of the patent; or<\/p>\n\n\n\n (ii)\ncharged with infringement under the patent; or<\/p>\n\n\n\n (B)\na competitive harm related to the validity of the patent.\u201d<\/p>\n\n\n\n Two of the amendments to SEC. 104. Composition of post-grant\nreview and inter partes review panels, amend Section 6(c) of title 35, United\nStates Code as follows:<\/p>\n\n\n\n \u201c(1) IN GENERAL.\u2014Each appeal, derivation proceeding,\npost-grant review, and inter partes review shall be heard by at least 3 members\nof the Patent Trial and Appeal Board, who shall be designated by the Director.<\/p>\n\n\n\n (2) INELIGIBILITY TO HEAR REVIEW.\u2014A member of the Patent\nTrial and Appeal Board who participates in the decision to institute a\npost-grant review or an inter partes review of a patent shall be ineligible to\nhear the review.\u201d<\/p>\n\n\n\n SEC. 105. Reexamination of patents amends the process of\nrequesting a reexamination, while SEC. 106. Restoration of patents as property\nrights states is amended to provide injunctive relief stating:<\/p>\n\n\n\n \u201c(b) Injunction.\u2014Upon\na finding by a court of infringement of a patent not proven invalid or\nunenforceable, the court shall presume that\u2014 <\/p>\n\n\n\n (1)\nfurther infringement of the patent would cause irreparable injury; and<\/p>\n\n\n\n (2)\nremedies available at law are inadequate to compensate for that injury.\u201d<\/p>\n\n\n\n One of the problems that this Act addresses is the\ndiversion of fees paid to the USPTO. Currently funds can be diverted to fund\nother agencies and cover other government expenses. By this Act, SEC. 107. Elimination of USPTO\nfee diversion, clause regarding (a)\nFunding.\u2014Section 42 of title 35, United States Code, is amended as follows:<\/p>\n\n\n\n \u201c(1) IN GENERAL.\u2014Fees authorized in this title or\nany other Act to be charged or established by the Director shall be collected\nby the Director and shall be available to the Director until expended to carry\nout the activities of the Patent and Trademark Office.\u201d<\/p>\n\n\n\n Item \u201c(2) ESTABLISHMENT.\u2014There\nis established in the Treasury a revolving fund to be known as the \u2018United\nStates Patent and Trademark Office Innovation Promotion Fund\u2019.\u201d<\/p>\n\n\n\n I particularly support the addition of SEC. 109. Assisting\nsmall businesses in the U.S. patent system, which states in part: <\/p>\n\n\n\n \u201c(b)\nSmall Business Administration report.\u2014Not later than 1 year after the date of\nthe enactment of this Act, the Small Business Administration, using existing\nresources, shall submit to the Committee on Small Business and Entrepreneurship\nof the Senate and the Committee on Small Business of the House of\nRepresentatives a report analyzing the impact of\u2014 <\/p>\n\n\n\n (1) patent ownership by small business concerns; and<\/p>\n\n\n\n (2) civil actions against small business concerns arising\nunder title 35, United States Code, relating to patent infringement.<\/p>\n\n\n\n (c) Expansion of patent pilot program in certain district\ncourts.\u2014 <\/p>\n\n\n\n (1)\nIN\nGENERAL.\u2014Not later than 180 days after the date of the enactment of this Act,\nthe Director of the Administrative Office of the United States Courts shall designate\nnot fewer than 6 of the district courts of the United States that are\nparticipating in the patent cases pilot program established under section 1 of Public Law 111\u2013349<\/a>\n(28 U.S.C. 137<\/a>\nnote) for the purpose of expanding that program to address special issues\nraised in patent infringement suits against individuals or small business\nconcerns.<\/p>\n\n\n\n (2)\nPROCEDURES\nFOR SMALL BUSINESSES.\u2014Not later than 2 years after the date of the enactment of\nthis Act, each district court designated under paragraph (1) shall develop\nprocedures for expediting cases in which an individual or small business\nconcern is accused of patent infringement.<\/p>\n\n\n\n While\nthis bill addresses many of the problems caused for the America Invents Act of\n2011, it does not address the most egregious provision of that Act; namely,\nchanging our patent system from a \u201cfirst to invent\u201d to a \u201cfirst to file\u201d\nsystem. This change has done the most\ndamage to the individual inventor or small business entity. While a provisional patent that is good for\none year is relatively inexpensive, it is expensive and time consuming to\npursue obtaining a non-provisional patent (3-5 years average). Individual inventors have to be extremely\ncautious not to reveal information on their technology to prevent others from\nbeing first to file a patent for the technology they invented. <\/p>\n\n\n\n Because\nof the complexity of this bill, I don\u2019t think it has any greater chance of\ngetting out of committee to be voted on by the whole of Congress this year than\nthe Stronger patent Act of 2017. In fact, it may have less chance in the\nDemocrat-controlled House with many more Republican than Democrat co-sponsors. In\nmy opinion, I think the simple, one-page Inventor Rights Act has a much better\nchance of being brought to the House floor for a vote this year, and it will\nrestore the rights of inventor to their patents. <\/p>\n","protected":false},"excerpt":{"rendered":" On July 10, 2019, H.R. 3666, the \u201cSTRONGER Patents Act of 2019,\u201d was introduced in Congress and referred to the Committee on the Judiciary and the Committee on Energy and Commerce. The purpose of the Act is \u201cTo strengthen the position of the United States as the world\u2019s leading innovator by amending title 35, United […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[193,216,152],"tags":[85,269,146],"class_list":["post-954","post","type-post","status-publish","format-standard","hentry","category-inellectual-property","category-legislation","category-patent-reform","tag-intellectual-property","tag-legislation","tag-patent-reform"],"_links":{"self":[{"href":"https:\/\/savingusmanufacturing.com\/blog\/wp-json\/wp\/v2\/posts\/954","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/savingusmanufacturing.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/savingusmanufacturing.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/savingusmanufacturing.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/savingusmanufacturing.com\/blog\/wp-json\/wp\/v2\/comments?post=954"}],"version-history":[{"count":1,"href":"https:\/\/savingusmanufacturing.com\/blog\/wp-json\/wp\/v2\/posts\/954\/revisions"}],"predecessor-version":[{"id":955,"href":"https:\/\/savingusmanufacturing.com\/blog\/wp-json\/wp\/v2\/posts\/954\/revisions\/955"}],"wp:attachment":[{"href":"https:\/\/savingusmanufacturing.com\/blog\/wp-json\/wp\/v2\/media?parent=954"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/savingusmanufacturing.com\/blog\/wp-json\/wp\/v2\/categories?post=954"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/savingusmanufacturing.com\/blog\/wp-json\/wp\/v2\/tags?post=954"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}