From the Alliance

Sep. 29, 2021

Innovation Alliance Statement on Restoring the America Invents Act

Bill Would Allow Gaming of the PTAB by Big Tech Firms and Other Large Corporate Infringers and Undermine Patent Rights of Smaller Inventors

WASHINGTON, D.C. – Innovation Alliance Executive Director Brian Pomper today issued the following statement on the introduction of the Restoring the America Invents Act by Senators Patrick Leahy (D-VT) and John Cornyn (R-TX):

“Strong patent rights are critical to incentivizing innovation and promoting job and economic growth in the United States. If we want an economy that can compete with China in the long run, Congress should focus its efforts on measures to make patent rights more predictable and secure, including the STRONGER Patents Act, and on encouraging more innovation in the sectors that are going to be where that competition is going to take place, such as 5G, artificial intelligence, semiconductors, and biotechnology.

“Unfortunately, the Restoring the America Invents Act would take us in the wrong direction. In particular, the Innovation Alliance opposes the changes to the USPTO’s Patent Trial and Appeal Board (PTAB) review process proposed in the bill.

“In recent years, USPTO updated the post-grant system at the PTAB in a variety of ways to make it a fairer and more balanced system, and one that we believe more accurately reflects congressional intent in the America Invents Act. Those updates reinforced that PTAB trials should be a cost-effective alternative to district court litigation, not an additional avenue for challenging patents. Before those updates were adopted, more than 85% of PTAB reviews were filed in parallel to district court litigation, forcing inventors to defend their patents in simultaneous and duplicative proceedings. The bill introduced today would eliminate many of those updates and reestablish PTAB trials as a parallel avenue, as opposed to an alternative to district court trials.

“The most frequent users of the PTAB process are the same Big Tech companies that many in Congress believe are already too powerful. We believe this bill would help make them more powerful by giving them additional tools to game the PTAB process to drag out infringement disputes and increase the cost of enforcing valid patents. That would place an often insurmountable burden on smaller companies and inventors who don’t have the resources to continue fighting to enforce their rights.

“The Innovation Alliance looks forward to working with Senators Leahy and Cornyn to improve this legislation to guard against gaming of the PTAB process and ensure that the patent system works to protect the rights of all inventors.”