Congressman/Inventor Introduces Legislation to “Fix” U.S. Patent SystemNovember 10, 2021

On November 4th, Kentucky Representative, Thomas Massie, who is the named inventor on two dozen patents, has introduced a bill to the House Judiciary Committee which, if passed, would significantly change U.S. patent laws.

The bill seeks to nullify some provisions of the America Invents Act (AIA) passed in 2011, as well as reverse some recent decisions of the U.S. Supreme Court.

First, the bill proposes to abolish the Patent Trial and Appeal Board (PTAB) which was a creation of the AIA.  The PTAB has largely become a death bed for many patents, which often have been declared invalid and thus unenforceable by the Board.  The bill would eliminate inter partes and post-grant patent reviews.

The bill would also restore the United States to a first-to-invent system, as we had before the U.S. changed to a first-to-file system at the Patent Office in a compromise to effectively harmonize our patent laws with those in most other countries around the world.  Massie explains that “patents should protect those who innovate, not those who win a race to the Patent Office.”

Next, the bill hopes to reverse the Supreme Court’s 2006 decision in eBay Inc. v. MercExchange, LLC, 547 U.S. 388, wherein the Court unanimously held that a patent owner was not automatically entitled to a permanent injunction following a finding of infringement, despite the patent laws giving a patent owner the right to exclude others from making, selling, and using the patented invention throughout the United States (35 U.S.C §154).  Prior to eBay, patent infringement normally led to an injunction against the infringer.  The bill creates a presumption of irreparable harm to the patent owner for continued infringement.

Massie’s legislation also wants to clarify patent eligible subject matter, which has been commonly considered by many, including the judges on the Court of Appeals for the Federal Circuit (the sole patent appellate court), to be hopelessly confusing and inconsistent, particularly since Alice Corp v. CLS Bank International, 573, U.S. 208 (2014).  In the ensuing years, many patents and patent applications (such as those directed to medical diagnostics and software related inventions) have been killed for being directed to an abstract idea, a judicially created exception to patentable subject matter, even though no Court has ever defined “abstract idea.”

Massie has introduced similar proposed changes to the patent statutes in 2018 and 2020.  The current bill is co-sponsored by Representatives Gohmert (Texas), Gosar (Arizona), and McClintock (California).

Kirk Hartung is a member of the Mechanical Patent Practice Group at McKee, Voorhees & Sease, PLC. For additional information please visit  www.ipmvs.com or contact Kirk directly via email at kirk.hartung@ipmvs.com.