Patents have been mainstay of the Judiciary Committee agenda in both chambers for more than a decade, but never before has the debate seemed so firmly focused on strengthening patent rights.  Significant patent bills are pending in both chambers, and the House and Senate Judiciary Committees have summoned Andrei Iancu, the new director of the U.S. Patent and Trademark Office (USPTO), to testify at oversight hearings early in his tenure at the agency.  Notably, unlike previous Congresses, none of the introduced bills restrict patent owners’ access to the federal courts.  For his part, Iancu has been outspoken about shifting the Administration to a new “pro-patent, pro-innovation dialogue.” In addition, the House Small Business Committee held its own hearing dedicated to intellectual property issues.  While the prospects of passing significant legislation in this Congress are slim, the patent debate has clearly shifted, and we can expect even more activity in the next Congress.

In March, 2018, Representatives. Steve Stivers (R-OH) and Bill Foster (D-IL) introduced the bipartisan Support Technology and Research for Our Nation’s Growth and Economic Resilience (STRONGER) Patents Act (H.R. 5340).   The STRONGER Patents Act amends the inter partes and post-grant review procedures at the USPTO’s Patent Trial and Appeal Board (PTAB) to ensure fairness for both patent owners and challengers.  Created by the America Invents Act (AIA) in 2011 as an “alternative” to district court litigation for adjudicating patent validity, the PTAB in practice has invalidated patents at a much higher rate than federal courts.  The STRONGER Patents Act would, among other things, ensure that PTAB petitioners have an interest in the patents they challenge; harmonize the claim construction standards and burden of proof between federal district court and the PTAB; and permit patent owners to amend their claims during the proceeding to preserve their patent’s validity.

The STRONGER Patents Act would also clarify the authority of the Federal Trade Commission and state attorneys general to take action against senders of abusive patent demand letters, and ensure the USPTO has the resources it needs to issue strong patents and trademarks by ending the practice of “fee diversion” and granting the director the authority to spend all patent and trademark fees collected by the agency.  Senators Chris Coons (D-DE) and Tom Cotton (R-AR) introduced the Senate STRONGER Act in June, 2017.

Just last week, Representatives Thomas Massie (R-KY) and Marcy Kaptur (D-OH) introduced the bipartisan Restoring America’s Leadership in Innovation Act (“RALIA”) (H.R. 6264).  The act codifies that “a patent is a private property right . . . that shall only be revoked by a court ruling in a judicial proceeding“ without the consent of the patent owner.  The bill would also reverse the Supreme Court’s decision in eBay v. MercExchange, restoring the ability of patent owners to obtain injunctive relief for patents found valid and infringed; repeal the provisions of the AIA that create the PTAB and inter partes review; repeal the AIA’s provisions converting the United States to a first-to-file patent system; create a strong presumption of patent validity in any judicial or administrative proceeding; and toll a patent term during validity challenges.

Both chambers have also taken steps to ensure that the USPTO has appropriate authority to set its own user fees.  Senators Coons and Orrin Hatch (R-UT) introduced the Building Innovation Growth through Data for Intellectual Property (BIG Data for IP) Act (S. 2601).  In his testimony before the House Judiciary Committee in May, Director Iancu endorsed the House companion to the BIG Data for IP Act (H.R. 5887), sponsored by Representatives Steve Chabot (R-OH) and Hank Johnson (D-GA).

In the oversight hearings, Director Iancu promoted strong patent rights, emphasizing the need for the USPTO to review the PTAB proceedings from top to bottom.  Under questioning from House Judiciary Committee members, Director Iancu defended his office’s recent notice of proposed rulemaking to harmonize claim construction standards used at the PTAB with those used in federal court.  Representative  Johnson, Ranking Member of the House Intellectual Property Subcommittee, asked Director Iancu how he planned to address high invalidation rates at the PTAB, and the Director emphasized his commitment to a complete review of the process. Although Representatives Zoe Lofgren (D-CA) and Darrell Issa (R-CA) assailed the proposed rule as contrary to Congress’s intent in the AIA, Director Iancu stated that the proposed rule is an appropriate use of the discretion afforded to the USPTO in the AIA.