On March 22, 2018, Rep. Steve Stivers (R-OH) and Rep. Bill Foster (D-IL) introduced the Support Technology & Research for Our Nation’s Growth and Economic Resilience (STRONGER) Patents Act into the House of Representatives.
The proposed bill accompanies the previous bill of the same name that was introduced in June of 2017, by Senator Chris Coons (D-Del.). Coons introduced the Support Technology & Research for Our Nation’s Growth and Economic Resilience Act (the STRONGER Patents Act), which is intended to make it easier and more affordable for patent holders to enforce their patents.
The current bill aims to “strengthen the position of the United States as the world’s leading innovator by amending title 35, United States Code, to protect the property rights of the inventors that grow the country’s economy.”
A few specific goals of the bill are to limit repeat patent validity challenges, ensure fairness in administrative challenges, protect small business owners from abusive patent demand letters, and to ensure the United States Patent Office (USPTO) retains fees collected for patent application and other patent prosecution matters.
The new bill also identifies the unintended consequences of the enactment of the 2011, American Invents Act (AIA). One such consequence of the AIA are the negative aspects associated with the post-grant review proceedings at the Patent Trial and Appeal Board (PTAB). The AIA attempted to provide a more efficient administrative process to eliminate “bad” patents. In reality, the implementation of procedures such as inter partes review (IPR) proceedings has caused the duplicitous filing of petitions in the PTAB by challenging parties and has created more work and has led to more fees, which some feel is akin to extortion. Many have referred to the PTAB as the death squad. Rep. Stivers stated “[i]nstead of [the PTAB] living up to its billing as being more efficient and quicker, the PTAB has become just another stop which is more complicated, more expensive and exactly the opposite of what it was intended to do.”
One aspect of the STRONGER patents bill is it would modify the claim construction procedure in IPR and other post-grant proceedings and would require claims in these venues to be construed as they would be under Section 282(b). The requirements for PTAB petitions would also be strengthened by requiring initiating parties to show: a possibility of an infringement suit, a charge of infringement of the challenged patent, or a demonstration of “competitive harm related to the validity of the patent.”
In addition, the new bill proposes new IPR amendment practices, which would allow a patent owner to propose a reasonable number of substitute claims which would be examined in an expedited process.
Other provisions in Title I increase the opportunity to request a reexamination, if submitted in writing and accompanied by the reexamination fee. An ex parte reexamination may be barred if filed a year or more after the infringement complaint is served. Title I also provides improvements in the courts’ ability to issue injunctions when patent infringement is determined; gives institutions of higher education micro-entity status; ensures that USPTO fees are not diverted, and assists small businesses through the patent system.
Provisions in Title II focus on targeting rogue and opaque letters, such as letters sent in bad faith by patent owners with misleading statements about actions to be taken. The Federal Trade Commission (FTC) and State Attorneys General (AG) are given the power to bring suit against entities engaging in bad faith communications for their perspective jurisdictions—for the AGs, this title preempts state laws relating to communications pertaining to patent rights assertions.
There have been multiple Supreme Court and legislative changes over the past decade that many feel have resulted in the weakening of the patent system. Historically, the United States was ranked first in the world for innovation and protection of intellectual property. According to the U.S. Chamber of Commerce’s international ranking of patent system strength, the UK and Germany are quickly rising to the top of the list, while the United States has markedly fallen.
Rep Stivers commented, “[h]istorically, since Edison and even before, we have had the best ideas and intellectual property system in the world. Those things together created the world’s greatest economy. If we don’t have a strong IP system, it will hurt our economy.”
As with all things political, there are those with opinions on both sides of the issue. However, the STRONGER Act has largely been met with strong bipartisan support.
Suiter Swantz IP is a full-service intellectual property law firm, based in Omaha, NE, serving all of Nebraska, Iowa, and South Dakota. If you have any intellectual property questions or need assistance with any patent, trademark, or copyright matters and would like to speak with one of our patent attorneys please contact us.