How, if at all, should the American patent system for inventions be updated to the modern age?
The Leahy-Smith American Invents Act of 2011 was the most significant reform to the U.S. patent system since 1952. In the years since, however, some believe that some changes to the Leahy-Smith Act didn’t go far enough, as well as some changes that should have been included but weren’t.
Arguably the biggest change the law made was altering the U.S. from granting patents by a “first to invent” system to a “first inventor to file” system instead, as exists in most of the rest of the world.
What the legislation does
The bipartisan Support Technology and Research for Our Nation’s Growth and Economic Resilience (STRONGER) Patents Act that would make several reforms to the current patent system, including:
- Allowing so-called preliminary injunctions, which would prevent patent filers from experiencing infringement while their patent applications are still pending.
- Requiring a new legal standard of “clear and convincing evidence” in order to invalidate an existing patent.
- Changes the standard to makes somebody legally culpable for patent infringement, even if they did so unknowingly.
The House version was introduced on July 10 as bill number H.R. 3666, by Rep. Steve Stivers (R-OH15). The Senate version was introduced that same day as bill number S. 2082, by Sen. Chris Coons (D-DE).
What supporters say
Supporters argue that the American patent system has become too burdensome and undependable, especially when compared with many other countries in this globalized economy.
“While our global competitors strengthen their intellectual property laws, we are at risk of losing our reputation as the gold standard for patent protection because U.S. patents have become too difficult to enforce and too unreliable to justify critical investments in emerging technologies,” Sen. Coons said in a press release. “It is time to restore balance to our patent system and ensure our continued leadership on the global stage.”
“Main Street can and should be just as much of an engine for innovation as Silicon Valley, but we must ensure that the innovators are able to protect their next big idea,” Congressman Stivers said in the same press release. “[This bill will] provide entrepreneurs the protection they need to develop intellectual property and bring new ideas to market for everyone to benefit.”
What opponents say
Opponents counter that the legislation contains myriad problems, including a likely rise in outsourcing, minor lawsuits, and unnecessary patent ‘hold-ups.’
“It’s hard to imagine a piece of legislation more hostile to a balanced and healthy patent system and American innovation than the STRONGER Patents Act,” Software & Information Industry Association (SIIA) President and CEO Ken Wasch said in a press release.
“The bill creates perverse incentives for companies to move both R and D [research and development] and manufacturing to foreign countries. It eviscerates the ability of the Patent and Trademark Office to correct mistakes it has made in issuing bad patents. It virtually guarantees rampant patent “hold-ups” whereby a thousand-dollar device can’t be distributed because of questions about a two-cent part. It overturns years’ worth of unanimous Supreme Court decisions that have helped innovation, while gutting the reforms that a bipartisan Congress enacted in 2013. This legislation guarantees an explosion of troll litigation.”
Odds of passage
The House version has attracted 18 bipartisan cosponsors: 11 Republicans and seven Democrats. It awaits a potential vote in either the House Judiciary or House Energy and Commerce and Committees.
The Senate version has attracted five bipartisan cosponsors: three Republicans and two Democrats. It awaits a potential vote in the Senate Judiciary Committee.