By: Jaime Choi and Dave Maiorana

On March 20, 2018, Reps. Steve Stivers (R-Ohio) and Bill Foster (D-Ill.) announced in an article that they would introduce the STRONGER Patents Act to the U.S. House of Representatives. More formally referred to as The Support Technology and Research for Our Nation’s Growth and Economic Resilience Act of 2017, the STRONGER Patents Act was introduced to the Senate in 2017 and almost immediately received a broad spectrum of commentary, including on the Jones Day PTAB Litigation Blog.

In their article, Reps. Stivers and Foster indicate that the STRONGER Patents Act is needed now because “recent changes to patent laws have made patents harder to defend and enforce, and they have devalued American intellectual property.” They also enumerate perceived shortcomings of the Patent Trial and Appeal Board (PTAB), including that “the PTAB now routinely throws out patents that have been duly awarded by the U.S. Patent and Trademark Office using loopholes and weaker disparate standards,” that “it has canceled patents after district courts upheld the patent,” and that “[p]atent owners are forced to frequently battle both in court and at the PTAB with conflicting decisions.” Although the article does not specifically explain how the Act would modify the PTAB, these citations may refer to the Act’s proposed amendments to US patent law affirming that issued claims are presumed valid in Inter Partes Review (IPR), raising the burden of proof to show unpatentability of issued claims in IPR, barring IPR if a federal court has entered a final judgment deciding a patent claim’s validity with respect to novelty or nonobviousness, and terminating an IPR if a patent claim’s validity is upheld by a federal court.

Reps. Stivers’s and Foster’s article also cites Thomas Edison as a sort of poster child for the strength of the patent system in years gone by:

All you need to do to understand the importance of protecting patents is to take a look at Thomas Edison, one of our country’s most famous inventors. As a humble telegraph operator, Edison invented a telegraph that could send four signals at once. Edison sold this patent for $10,000 and used that money to set up a research laboratory. With that investment, he would invent recorded sound, movie cameras, and most famously, the lightbulb. His lab eventually grew to the size of two city blocks and employed a full team of researchers. By the end of his life, he owned over a thousand patents and started 14 companies, including General Electric. We are better off today thanks to his ideas that flourished because of the protections of our patent laws.

The Act’s introduction to the House in 2018 almost certainly will spark a new round of discussion on its possible merits and weaknesses. And, if the Act becomes law, we may well find out whether it truly provides inventors “the level of protection afforded to Edison,” as Reps. Stivers and Foster indicate is required for the U.S. to “lead in life-science discoveries, software patents, and medical devices.”

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Dave Maiorana is a trial lawyer with a notable combination of significant experience as a United States Patent and Trademark Office (USPTO) Examiner and more than 25 years litigating complex intellectual property matters. He has represented clients as both plaintiffs and defendants around the country and in the International Trade Commission (ITC). Dave has experience in diverse technology areas, including e-cigarettes, teeth whitening, diapers, fem care, antibodies, self-inflating tires, oxygen concentrators, flash memory, and digital cameras.