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Does The U.S. Need STRONGER Patents?

Last week Senators Chris Coons (D-Del.) and Tom Cotton (R-Ark.) and Representative Steve Stivers (R-Ohio) and Bill Foster (D-Ill.) reintroduced the STRONGER Patents Act, originally introduced in 2017. While many recently proposed patent bills would make it easier to challenge patents, the STRONGER Patents Act would limit the ability of third parties to challenge granted patents in USPTO Patent Trial and Appeal Board (PTAB) proceedings. While most patent owners would welcome these changes, will enough members of Congress agree that the U.S. needs stronger patents to roll-back many provisions of the America Invents Act?

The STRONGER Patents Act 

According to the press release on Sen. Coons webpage, the aim of the STRONGER Patents Act is “to protect and support inventors and innovators and ensure that our patent system protects this essential property right.” Key objectives of the legislation include:

  • providing for injunctive relief against infringers 

  • making post-grant PTAB proceedings “more fair and efficient for all parties”

  • “address[ing] the problem of repetitive, harassing petitions at the PTAB”

As outlined in this section-by-section summary, the bill would modify post-grant PTAB proceedings in the following ways:

  • Impose the “clear and convincing” evidence standard 

  • Impose a standing requirement for petitioners 

  • Hold that any entity that makes a financial contribution to a post-grant PTAB proceeding is a “real-party-in-interest”

  • Require different APJs for institution decisions and versus decisions on the merits

  • Provide for judicial review of some aspects of institution decisions 

Other provisions are aimed at providing patent owners with “quiet title” to their patents. These would: 

  • Limit USPTO review to “only once per claim of a patent”

  • Limit Petitioners to only “one petition to challenge a patent, unless they are later charged with infringement of additional claims”

  • Give priority to Federal Circuit validity determinations

STRONGER Patent Supporters

According to Sen. Coons’s press release, the bill has the following bipartisan, bicameral support: 

Senators:

  • Chris Coons (D-Del.) 

  • Tom Cotton (R-Ark.)

  • Dick Durbin (D-Ill.)

  • John Kennedy (R-La.)

  • Mazie Hirono (D-Hawaii)

  • Kevin Cramer (R-N.D.).

Congressman:

  • Steve Stivers (R-Ohio)

  • Bill Foster (D-Ill.)

  • Brian Babin (R-Tex.)

  • Michael Burgess (R-Tex.)

  • Warren Davidson (R-Oh.)

  • Scott Peters (D-Cali.)

  • Paul Gosar (R-Ariz.)

  • French Hill (R-Ark.)

  • Thomas Suozzi (D-N.Y.)

  • Bill Huizenga (R- Mich.)

  • Dave Joyce (R-Oh.)

  • Nydia Velazquez (D-N.Y.)

  • Peter King (R-N.Y.)

  • Ralph Norman (R-S.C.)

  • Bonnie Watson Coleman (D-N.J.)

  • Tom McClintock (R-(Cali.).

That’s an impressive number of supporters, but still a long way from a majority vote.

© 2019 Foley & Lardner LLP

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About this Author

Courtenay C. Brinckerhoff, intellectual property  law attorney, Foley & Lardner  Law Firm
Partner

Courtenay Brinckerhoff is a partner and intellectual property lawyer with Foley & Lardner LLP. Ms. Brinckerhoff’s practice focuses on client counseling in all aspects of obtaining, licensing and enforcing patents and conducting freedom-to-operate and due diligence investigations. She is chair of the firm’s IP Law and Practice committee, immediate past vice chair of the firm’s Chemical, Biotechnology & Pharmaceutical Practice and a member of the firm's Patent Trials group, Appellate Practice and Life Sciences Industry Team. She also is involved with Foley’s...

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