“The definition of insanity,” Albert Einstein supposedly said, “is doing the same thing over and over again, but expecting different results.” If true, then the advocates of legislative patent reform must be certifiable.
As I’ve detailed in this space, the thus-far quixotic efforts of lawmakers—led chiefly by the bipartisan tag-team of Sens. Chris Coons (D-DE) and Thom Tillis (R-NC)—to amend the patent statute to bring the system into balance have frequently come up short.
Last year, Coons and Tillis introduced two measures that aimed to level the playing field for inventors and spur innovation across the economy.
First, the Patent Eligibility Restoration Act of 2023 (PERA) sought to rationalize the complex question of what subject matter should receive patent protection after the Supreme Court roiled the patent-eligibility inquiry with a controversial ruling 10 years ago. Observing the “extensive confusion and a lack of consistency” prevailing in the field, Tillis and Coons vowed to reform patent-eligibility law to bring vital clarity for inventors and innovators and ensure the United States maintains its competitive edge.”
Second, they introduced the Promoting and Respecting Economically Vital American Innovation Leadership Act (PREVAIL) Act of 2023, which aims to reform the Patent Trial and Appeals Board (PTAB), an administrative tribunal in operation since 2013 that was designed to more cheaply and quickly dispose of unworthy patents but that its detractors claim has been too aggressive. PREVAIL would enhance the standing requirement for PTAB challengers, equalize the interpretation of claims and the burden of proof between the PTAB and district courts, block repetitive patent challenges, and prohibit the director of the US Patent and Trademark Office from influencing PTAB rulings.
While both measures attained bipartisan, bicameral support, they failed to gain traction last year and are figured to be dead letters during the current election year. However, a flurry of activity raised hopes that the bills would progress during the current session, as Tillis and Coons pushed for a Senate Judiciary Committee markup before the most recent legislative session closed. They scheduled a hearing for September 19 but were compelled to reschedule it for September 26. Then, without elaboration, Sen. Richard Durbin (D-IL), the committee chairman, canceled the September 26 hearing, postponing it indefinitely.
Meanwhile, various interest groups dutifully lined up to declare their support for and opposition to the measures. Among backers, the Coalition for 21st Century Patent Reform, an alliance that includes corporate innovators like 3M, Johnson & Johnson, and Caterpillar, urged senators to endorse PERA and PREVAIL in order to “fuel the investment, economic development, and job growth that is needed to secure our country and return it to its traditional position as the world’s technological leader.”
In parallel, a number of conservative political organizations, including Americans for Tax Reform, Heritage Action for America, and the Eagle Forum, exhorted the committee to support both measures, arguing that they would “bolster the reliability, certainty, and strength of American patents” and “clarify and refine elements of the patenting process, making it easier for legitimate patent claims to reach fruition and withstand what would become fairer, more consistent, impartial scrutiny once granted.”
By contrast, the Electronic Frontier Foundation (EFF) encouraged senators to vote no on both bills, lamenting the prevalence of “patents used to harass software developers and small companies in recent years” and blaming “patent trolls and a few huge corporate patent-holders” for worrying about “losing their bogus patents.” The R Street Institute echoed EFF, maintaining, in the name of “working to address the high cost of prescription drugs,” that PREVAIL “seriously undermines citizens’ ability to promote competition by challenging patents” while PERA “opens the door to allow an individual or corporation to acquire exclusive rights to aspects of nature and information about our own bodies.” It’s likely that strident opposition to the bills pushed Durbin to postpone the hearing, which now will be carried into the lame-duck session or otherwise tabled until the next Congress. We will find out soon enough. In the meantime, the insanity persists.
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