Bills in Congress would Revoke the PTAB and Restore Patentability of Several ProductsAugust 16, 2018

Several bills have been introduced in Congress in the last two months that would have a big impact on patent law if passed. The first, introduced at the end of June is HR6264, referred to as The Restoring American Leadership in Innovation Act. Among the provisions of this bill would be elimination of the Patent Trial and Appeal Board (PTAB), the entity created by the March 2013 America Invents Act (AIA). The PTAB has been the subject of some controversy as allegedly being overly aggressive in finding patents invalid and not affording patents the same protection provided in courts. Inter Parties Review process would also be removed from the statutes. The section of the AIA of awarding patents to the first to file at the Patent Office would be repealed, replaced with the prior first to invent system, and the PTAB replaced with the Board of Patents and Interferences.

What is more, section 101 of the patent statutes would be revised. Currently, as per Supreme Court decisions a product of nature such as DNA is not patentable, even if isolated from its natural environment. The law would be changed to state a product of nature is not patentable if it exists in nature “independently of and prior to any human activity.” The human involvement provision would make a number of biological products patentable that today would otherwise not be patentable.

Still another bill introduced at the end of July, the Inventor Protection Act, HR 6557, was introduced and would also make significant changes, but applies only to inventor owned patents, as opposed to patents assigned by inventors to another entity. It would reverse court decisions that narrowed venue of infringement actions and provide an action may be brought where the defendant is subject to the court’s jurisdiction where it has purportedly infringed. The presumption of irreparable harm to an inventor upon finding infringement would also be restored, paving the way for less onerous proof to obtain an injunction.

Congressman Dana Rohrabacher of California has been involved in sponsoring or introducing the bills was has long been opposed to the AIA and its outcomes.

Of course whether any bills makes it through Congress is unpredictable, but the current versions of these bills contain language that would significant impact patent law. HR 6264 may be tracked here and HR 6557 may be tracked here.