Just when you thought it was safe to fall asleep, legislative patent reform has clawed its way back to life.
Like the Terminator, Chuckie, Lazarus, Jason, and Bartolo Colon, efforts to overhaul our patent system have died a thousand deaths, only to be revived time and time again.
The latest death in 2016 came at the hands of election-year dynamics that all but shut down the lawmaking agenda. That dormancy persisted (0) this year, as the Trump administration has struggled to enact tax and health care reform at the expense of other legislative priorities. In the meantime, the Supreme Court has filled the void, issuing seminal rulings in several (1) key (2) patent cases.
But late last month, Sen. Chris Coons (D-DE) introduced an updated version of his two-year-old Strong Patents Act (3), this time called the Support Technology and Research for Our Nation’s Growth and Economic Resilience (Stronger) Patents Act (4). The measure was co-sponsored by Senators Tom Cotton (R-AR), Mazie Hirono (D-HI), and Richard Durbin (D-IL). (The two Democrats also co-sponsored the 2015 version.)
Like the Strong Patents Act, Coons’ latest bill would align the standard used in district courts for “claim construction” — how patent claims are rendered into plain English — with the standard used in Patent Office trials, which currently is broader and therefore more likely to find patents invalid.
It would also, like its predecessor, harmonize the burden of proof used in district courts for invalidating a patent — an elevated “clear and convincing” standard, which is used in many states to revoke parents’ custodial control of their children — with that used in Patent Office proceedings, which is currently a lower “preponderance of the evidence” burden.
Unlike the previous legislation, the Stronger Act imposes further changes to Patent Office trial procedure, including limiting the ability of parties that challenge patents to reraise the same arguments later and making it easier for the patent-holder to amend its claims during the process.
In addition, it would make it easier in district court for the patent owner to prove that a defendant caused other third parties to infringe upon the patent and that two different infringers acted in concert.
Like its predecessor, the new Coons bill would increase transparency in patent litigation and crack down further on abusive “demand letters” sent by so-called patent trolls.
Overall, while the Stronger Act gestures toward balance, it generally tilts toward the interests of patent owners.
“We must work together to ensure that the patent laws keep up with the innovators, so their ideas and businesses can fuel the American economy for generations to come,” Coons said in a press statement (5). “This means working to ensure that a patent continues to play its historic role in enabling inventors and small businesses to get funding and protect their ideas from being copied by larger corporate infringers.”
For his part, Cotton asserted (6) that “strong rights in property — whether intellectual or tangible — have been a key driver behind US economic might. Eroding such rights would imperil innovation and job growth, so we need to maintain strong patent protections if we want our economy to grow at full speed . . . this bill will make sure intellectual property rights are treated with the same respect as all our other rights.”
Some advocacy groups cheered the new bill’s introduction. Urging Congress to “take up and pass the STRONGER Patent Act to help restore the US to its position as the global leader in innovation,” the Innovations Alliance lamented (7) that “as the result of a series of patent-weakening Supreme Court decisions, legislative changes and administrative measures over the last decade the US patent system is no longer considered the global gold standard for intellectual property rights . . . The US must adopt policies that strengthen our patent system, instead of further weakening it.”
Most advocates for legislative efforts to crack down on abuse of the patent system have yet to weigh in, and the prospects for passage of this mostly Democratic-sponsored bill are uncertain to say the least, especially in a Trump-era Congress mired in other legislative morasses. Even so, once again the patent reform monster has proven its resilience.