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Competing Patent Bills Include Needed Improvements to the Patent System

House Representative Thomas Massie just introduced patent legislation called the "Restoring America's Leadership in Innovation Act," which follows the "Restoring the America Invents Act" introduced by Senator Patrick Leahy back in September.

The Leahy bill would constitute a much narrower and targeted change to the existing patent system that favors accused infringers. The primary change of the Leahy bill would make it easier to prevail in inter partes and post grant reviews by eliminating discretionary denials, which large tech companies have repeatedly fallen victim to. If enacted, this change would greatly benefit accused infringers that want to shift the fight away from litigation and back into patent office proceedings, which are faster, less expensive, and more likely to result in a finding of invalidity compared to district court litigation.

The Massie bill, on the other hand, would fundamentally overhaul the patent system in a way that favors patent owners. It would abolish the Patent Trial and Appeals Board, do away with inter partes reviews and post grant reviews entirely, expand patent eligibility to include most of the subject matter that had previously been found ineligible under Alice, make it much easier to obtain injunctive relief in patent cases, and revert the patent system back to the "first-to-invent" as opposed to "first-to-file" under the AIA.

As someone that represents both patent owners and accused infringers, here's what I like in the proposals.

I like making it easier for a patent owner to obtain injunctive relief, assuming the patent owner has a product that directly competes with the infringing product. As every patent trial attorney knows, obtaining an injunction (even in head-to-head competitor cases) is very difficult, which is bizarre given that patents are supposed to give the patent owner a limited monopoly.

I like abandoning the "first-to-file" patent system and going back to the "first-to-invent" system, even though it may lead to more complicated issues at trial. The issue is simple to me--if you can prove you invented first and were diligent, you should be entitled to priority over someone that came up with the invention later but beat you to filing the application with the patent office.

I like eliminating discretionary denials from PTAB decision making on IPRs and PGRs. Eliminating the PTAB's discretion to deny petitions based on parallel litigation brings more certainty to the IPR and PGR process, and additional certainty in the patent space is almost always welcome in my mind.

It's hard to deny that the U.S. patent system needs significant reforms. Patent litigation is overly complex, time-consuming and expensive, and hopefully one day the system can be revamped to address those issues. In the meantime, I'll take baby steps and I think the three steps above would help make the patent system better in the meantime.


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