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First Steps Toward STRONGER Patent Rights

Congress is faintly showing signs of coming to the side of U.S. inventors. It’s about time. For three decades, Congress has helped to gut the world’s gold-standard patent system.

This awakening to the damage Congress, courts and administrative bodies have inflicted on America’s property rights-based patent system is overdue and timely. The Trump administration is battling China’s systematic, aggressive schemes to steal or expropriate American innovators’ patents, trade secrets, copyrights and other intellectual property in its war for industrial and economic dominance. But America can’t win that war without restoration of our patent system and its private property rights foundation.

The STRONGER Patents Act has now been reintroduced, and it’s been heard in committee. S. 2082 is sponsored by Senate IP Subcommittee Ranking Member Chris Coons (D-Del.) and Sen. Tom Cotton (R-Ark.). H.R. 3666 is led by Rep. Steve Stivers (R-Ohio) and Rep. Bill Foster (D-Ill.). Each bill has garnered nearly partisan-balanced cosponsors.

The Senate IP Subcommittee hearing Sept. 11 heard about the uncertainty of U.S. patents, thanks to woefully easy patent invalidation. Senators learned of the disturbing practice of “efficient infringement,” where patent thieves willfully sell knockoffs of patented inventions and courts now refuse to stop them. Lawmakers were told how infringers game the system, tying patent owners up in litigation and in kangaroo administrative validity challenges.

One witness, the president of medical device incubator ExploraMed, Eb Bright, says, “If you are going to disrupt a marketplace, create an entirely new product category or leapfrog an existing technology platform, you need patent protection that is reliable and predictable. Unfortunately, we no longer have that in the United States.”

The House Judiciary Committee held a “Members Day Hearing” on Sept. 20. Rep. Stivers testified there on the STRONGER Patents Act and on patent-eligible subject matter reform (a topic for another blog).

This bipartisan, bicameral legislation addresses, among other things, two of the most injurious, weak links in our patent system: PTAB and injunction. This bill would rein in administrative patent validity challenge proceedings, making PTAB operate by the rules and standards federal courts use. It would also require courts to presume injunctions are in order after a patent owner has proven patent validity and infringement.

I can attest to the injustice and denial of property rights depriving patentees of their exclusive rights. A medical technology firm I consulted for found itself fighting an uphill battle against a competitor that dominated the market by infringing my client’s patents. My client spent years and millions of dollars fighting the infringer in court while trying to get a share of a market that should have been its exclusive realm. But the court wouldn’t grant an injunction.

The STRONGER Patents Act would begin to rectify such property rights-canceling injustices.

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