- - Sunday, July 26, 2020

Today’s greatest challenges require our greatest ingenuity and innovative savvy. These require the greatest level of security and reliability of U.S. intellectual property rights.

We’re talking about developing vaccines, tests, treatments and cures for COVID-19, foundational innovations for 5th-generation wireless connectivity and advanced manufacturing processes and machinery employing computers and robotics.

These and more cutting-edge technologies all come in the context of U.S. industrial competitiveness, namely concerning an aggressive China that doesn’t hesitate to use compulsion and crookedness to advance its totalitarian agenda.

Yet, the American patent system has been weakened in recent years.

For example, courts have disfigured the straightforward language of the threshold definition of what’s patentable. Section 101 of the patent law plainly says “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof” is patentable.

But judicially created exceptions, stemming from a string of wrong U.S. Supreme Court decisions, have wreaked havoc to the point of refusing patents for medical diagnostics and computer-implemented inventions. Inventions now not patentable in the United States have been and should be patentable, based on section 101 itself. Such inventions remain patentable in China and other countries.

Another example of weakening patent reliability comes from the errant ruling in eBay v. MercExchange. The Supreme Court sparked a veritable categorical rule against inventors and favoring infringers.

Courts now routinely deny patent owners an injunction against patent infringers after patent validity and infringement are proven. Injunction gives meaning to the exclusive right a patent is supposed to secure.

And Congress, especially through the so-called America Invents Act, created an adversarial, administrative means of invalidating issued patents. The Patent Trial & Appeal Board has rendered U.S. patents insecure and unreliable by PTAB’s many biases favoring infringers and speculative third parties.

Though misguided officials in Washington threaten to weaken patent rights further in the context of drug pricing, three bills in Congress offer a glimmer of hope and point toward how to return our patent system to the “gold standard” it once was.

The STRONGER Patents Act would correct key weaknesses. These include providing a presumption of injunctive relief for patent owners who prevail in patent infringement cases.

S. 2082/H.R. 3666 would also rein in PTAB by making its proceedings fairer and affording patent owners due process similar to that of federal court. PTAB would have to presume patent validity, apply a “clear and convincing” standard of proof for invalidation and limit to a single challenge of a patent that only legitimate challengers could bring. The bipartisan bill would also make federal court patent validity decisions outweigh the administrative panel’s.

Another good piece of legislation is the Inventor Rights Act. This measure would require the consent of inventors who own the patent to their invention for PTAB to hear a challenge against their patent. This approach would reverse the typical situation where a predator Goliath hauls an inventor David before PTAB (and maybe federal court, too) multiple times. That strategy forces an inventor to waste time and money that could be used, if there were quiet title, to create a market for the invention during patent exclusivity.

H.R. 5478 likewise would reverse the eBay error. It would establish a presumption of injunctive relief when a court finds an inventor-owned patent is valid and infringed.

A third positive bill is H.R. 7366, the Restoring America’s Leadership in Innovation Act. RALIA takes the biggest cut at the patent-weakening pitch sitting in the middle of the plate.

Like STRONGER Patents and the Inventor Rights Act, RALIA would redress the anti-patent categorical rule arising from the Supreme Court. It also would undo a lot of the damage the America Invents Act and other court decisions have inflicted.

For example, H.R. 7366 would repeal PTAB and its quasi-judicial proceedings, and return patent validity challenges to federal court. It would restore the breadth of meaning of section 101 for patent-eligible subject matter. 

RALIA would repeal several of the America Invents Act’s radical changes that have disrupted how inventors attract investors and strengthen their patent applications. It would restore confidentiality to disclosures to the Patent & Trademark Office during patent examination and end premature publication, which enables foreign IP thieves to steal our inventions before a patent is granted. It would strengthen the presumption that an issued patent is valid.

Importantly, H.R. 7366 would repeal the Supreme Court’s erroneous decision in Oil States v. Greene’s Energy. The legislation restores the fact that a patent secures “a private property right secured to an inventor.” This wrongly decided case dumbed down patent rights to nothing more than a government-given franchise. That would be jarring news to Thomas Edison or the Wright Brothers.

If Congress were serious about promoting American innovation and correcting the mess it and the courts have made of our patent system, lawmakers would get busy enacting these legislative prescriptions right away.

• James Edwards is executive director of Conservatives for Property Rights (@4PropertyRights) and patent policy adviser to Eagle Forum Education & Legal Defense Fund. The views expressed are his own.

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