Political Theater & Patent Reform

The Stronger Patent Act has failed to gain traction for several years now. The Bill is deemed to one-sided, proposing legislative changes that would effectively kill AIA trial proceedings. Strangely, a new bill was introduced last week that goes even further.

The so-called Restoring America’s Leadership in Innovation Act (here) proposes to disband the Patent Trial & Appeal Board (PTAB) and with it, AIA trial proceedings. The new bill also seeks to convert the U.S. system back to a first-to-invent system. The Bill is sponsored by Rep. Thomas Massie (R-Ky.) and co-sponsored by Reps. Marcy Kaptur (D-Ohio) and Dana Rohrabacher (R-Calif.). Some may recall Reps. Rohrabacher and Kaptur as being opponents of the post-grant mechanisms of the AIA.

While perhaps heartening to critics of the PTAB, the latest bill is little more than political theater. With mid-term elections on the way, and a Supreme Court nomination battle, attempts at patent reform will have to wait until 2019 – assuming a balanced bill ever emerges.

Copycat House Bill to Generate Positive Buzz?

Today, Representative Steve Stivers (R-OH) and Representative Bill Foster (D-IL) introduced H.R. 5340, the so-called “Support Technology & Research for Our Nation’s Growth and Economic Resilience (STRONGER) Patent Act.” The bill (here) is a carbon copy of the Senate Bill (save some cosmetic changes). On the Senate side, the Bill has existed in some form since 2015 but has languished. This is because its proposals would essentially legislate away the patentability trial mechanisms of America Invents Act (AIA). With the mammoth Tech and Bio/Pharma lobbies on opposing sides of that issue, a bill viewed as lopsided by Tech is a non-starter.

If nothing else, the House Bill appears to be an attempt to create some positive, political buzz.

Given the distance between powerful lobbies on these issues, I would not expect meaningful movement on the legislative front any time soon. Some of the more patent friendly changes over the past year have come from the PTAB itself. My expectation is that the agency will continue this trend and address some of these issues via notice-and-comment rulemaking later this year.