Senators Coons and Cotton introduce STRONGER Patents Act of 2017

By Brian Pomper
June 21, 2017

Senator Chris Coons (D-DE)

Senator Chris Coons (D-DE)

The Innovation Alliance commends Senators Coons and Cotton for introducing the bipartisan STRONGER Patents Act of 2017. This comprehensive legislation is exactly what is needed to strengthen our patent system, which will promote American innovation, competitiveness and job creation.

For roughly a decade now, we have seen a steady weakening of patent rights in the U.S., undermining the ability of inventors to protect their innovations from infringement from large corporations and foreign entities. The STRONGER Patents Act says ‘enough is enough’ and ensures that patent rights are protected as a fundamental underpinning of our innovation economy.

Representing an updated and expanded version of Senator Coons’ STRONG Patents Act of 2015, the STRONGER Patents Act takes critical steps to improve the patent system. It treats patents like any other property, permitting injunctions to protect patent owners against infringement during and after court cases. It ensures fairness in Patent Office administrative proceedings, limiting repetitive and harassing challenges against inventors. And it ends the diversion of patent application fees to other government spending, ensuring the Patent Office has the funding needed to grant high-quality patents without harmful delay.

As the result of a series of patent-weakening Supreme Court decisions, legislative changes and administrative measures over the last decade, the U.S. patent system is no longer considered the global gold standard for intellectual property rights. While the U.S. has been curtailing patent protections, our foreign competitors, such as China and Germany, have been moving to strengthen those protections and promote innovation in their countries. Notably, in 2016, the U.S. fell to 10th place in the U.S. Chamber of Commerce’s international ranking of patent system strength, falling behind countries such as Singapore, Spain and Italy.

This weakening of U.S. patent rights has led innovation – and the jobs and economic growth that go with it – to increasingly move overseas, along with the venture capital that funds so much of our start-up and entrepreneurial growth. In 2015, the U.S. share of global venture capital shrank to 54%, down from 83% in 1996, and many of the largest venture investments in the world are now occurring outside the U.S.

At the same time, we have seen legislative proposals, such as the Innovation Act (H.R. 9) and the PATENT Act (S. 1137), that would further weaken patent rights. Had these bills passed, they would have greatly advantaged just a few companies to the serious detriment of American innovation.

Patents provide a vital incentive for inventors, entrepreneurs, start-ups and universities to innovate and bring new technologies and medical breakthroughs to market. The American patent system, which is based on constitutionally-guaranteed patent rights, has been central to creating an innovation ecosystem that has produced the strongest economy in the world. The U.S. must adopt policies that strengthen our patent system, instead of further weakening it.

The Innovation Alliance urges Congress to take up and pass the STRONGER Patent Act to help restore the U.S. to its position as the global leader in innovation.

The Author

Brian Pomper

Brian Pomper is the Executive Director of the Innovation Alliance, a group that represents a broad range of research organizations on policy issues.

CLICK HERE to visit Mr. Pomper's web page.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 23 Comments comments.

  1. Curious June 21, 2017 12:57 pm

    No changes to 35 USC 101. Until that happens, the Courts are going to continue to throw out real inventions directed to real products because they are ostensibly directed to “abstract ideas.”

    This is a band-aid.

  2. Anon June 21, 2017 1:16 pm

    I will go one deeper:

    No change in removing the Supreme Court from the non-original jurisdiction of patent appeals.

    Lacking that, no matter what else Congress may do, the Court will still insist on (either implicitly or explicitly) re-writing the statutory law to fit its desired narrative.

  3. Bluejay June 21, 2017 1:28 pm

    Tom Cotton is a star.

  4. Tesia Thomas June 21, 2017 1:43 pm

    Let’s see this get approved in 9 months…

    …hopefully.

  5. Curious June 21, 2017 2:23 pm

    the Court will still insist on (either implicitly or explicitly) re-writing the statutory law to fit its desired narrative
    True, but the Federal Circuit is probably a worse place than the Supreme Court right now, and changing a statute (e.g., 35 USC 101) is a whole lot easier to do than to create a new Federal Circuit — bearing in mind that if you create a “Patent Court” that they’ll probably populate it with former members of the Federal Circuit.

    If Congress cannot fix 35 USC 101, Congress certainly is not going to create a whole new appellate court, which is what I believe you are suggesting.

  6. Bemused June 21, 2017 2:24 pm

    Bluejay@3: Agreed
    Tesia Thomas@4: Amen

  7. Anon June 21, 2017 7:13 pm

    Curious,

    If I were merely aiming for “easier” I would have meekly accepted some type of band-aid.

    But I would put to you that we do not need a Band-Aid, and merely “easier” may very well simply not be sufficient.

    I may also quibble with you as to which is worse (the CAFC or the Supremes – as I lean towards the Supremes who have brow-beaten the CAFC into that body’s current disarray), my past suggestions for the Congress to employ their Constitutional power of jurisdiction stripping is typically accompanied with suggestions of setting up a new untainted patent court. To that end, my suggestions rule out your comment of “probably populate it with former members of the Federal Circuit.

  8. Curious June 21, 2017 10:56 pm

    You and I are going to have to disagree on the Federal Circuit versus the Supreme Court. In Alice, they intentionally didn’t deviate very far from Bilski. However, the Federal Circuit treated Alice as open season on any patent that could force fit into their “abstract idea” box.

    As for your proposed new untainted patent court, the odds of that happening are between slim to none and leaning towards none. To make that happen, it would have to be readily apparent to layman’s eye that both the Federal Circuit and Supreme Court has gone rogue when it comes to patent law. While you could make that pitch to someone with a sophisticated knowledge of patent law, I highly doubt that you could convince enough in Congress to get that bill before the President. Moreover, even it were somehow possible to create a new patent court, I highly doubt that they’ll out-of-hand prevent any former members of the Federal Circuit from sitting on that court.

    I just don’t see it as a realistic proposal.

  9. Frank Lukasik June 22, 2017 6:31 am

    Stop expiring patents for non-payment of Maintenance Fees and give the Patents to the First Inventor, not the First-To-File

  10. Night Writer June 22, 2017 6:46 am

    @1 Curious. I agree without 101 there is no reform. To my mind there are no good proposals out there to reform 101. No one has dealt with all the issues properly.

  11. Ternary June 22, 2017 9:04 am

    This is a first real effort by Congress to clean up the IPR mess. As such, it should be supported. The absence of changes to 35 USC 101 is a disappointment.

    This bill is introduced by U.S. Senators Tom Cotton (R- Ark.), Chris Coons (D-Del.), Dick Durbin (D-Ill.), and Mazie Hirono (D-Haw.). Comments on this bill on this blog are very useful. Sending a personal letter to the senators (and to your own senators) requesting amending 101 as proposed by for instance AIPLA would be a simple step to express concern about the Alice issue and how it constraints protection of important inventions.

  12. Carrie Hafeman June 22, 2017 9:36 am

    Can you please post the email addresses of the Senators for everyone so that people that want to encourage them can do it. Even better, perhaps you can create a form for IP Watchdog followers to sign a petition to support these two, and really try to proactively help.

  13. IsaacsTM June 22, 2017 10:21 am

    Totally agree about letters and improvements to 101. As a prosecution attorney, I deal with 101 almost every day and the rejections are to the point of not being rational. I’ve never seen anything like it in 20 years of practice. Simple corrections to 101 to reign it in are needed. I like the AIPLA proposal but would add sentence to insure to protect software inventions at least to be eligible for 102/103 analysis. I would add to the end of 101(b): “Any software process implemented by a processor or the like cannot be performed solely in the human mind.” The problem is that the Examiners often just ignore the “via a processor” language in a claim to state that the process can be performed by the human mind. They give the “processor” zero weight in the rejection. 101 should expressly and more strongly correct that.

  14. CP in DC June 22, 2017 11:54 am

    As with all things, some of it is good, some bad. In some issues, the proposed bill goes too far. I understand the need to fix IPR, but this will need some fine tuning.
    What I like:

    1. Section I, fix the amendment process. We all know those problems.
    2. Section E, interlocutory appeals from institution decisions. Yeah, that is a problem.

    What I don’t like:
    1. Claim construction like that of district court litigation, so BRI only during examination, reissue, and reexam, but IPR like a court? Ok, so we don’t amend (yes fix the right to amend).
    2. Clear and convincing burden of proof? Ok, so do I get to put in more evidence too? They propose putting in more evidence, but how to do it in one year?
    3. Limitation on Reviews to only once per claim per patent. How does this work with section F? (The estoppel addresses section F, but it’s read narrowly by the Fed Cir). After the first party goes, we all live with that outcome? What about my rights to challenge a patent? Does the patentee only have a single opportunity to assert their patent against one infringer? No.
    4. Section H, if validity at the district court has started, stay the IPR. The only way this will happen is with a quick preliminary injunction (Mylan v Aurobindo), but even then validity review was cursory at best.

    Don’t get me wrong, IPR needs fixing. Should it be statutory fixing, rule fixing, or a split? That is a good question. All I caution is that we should not rush into anything simply because currently IPR is a mess. We don’t need another mess that needs fixing in 2-3 years.

  15. angry dude June 22, 2017 1:07 pm

    And what about EBay ?????????????????????

  16. Ternary June 22, 2017 1:37 pm

    Carrie @12,

    Senators can be e-mailed directly from their website. Just search for “contact senator Coons” for instance.

    The following is part of a body of a letter I sent to all 4 senators on the STRONGER Patent Act. You may want to provide your own background (inventor, attorney, investor) and add some of your own concerns and salutations etc.

    (Start)As an independent inventor I am very pleased with your introduction of the STRONGER Patents Act.

    One concern that I have and that is not addressed in the STRONGER Patents Act is the extremely important issue of patent eligibility under 35 U.S.C. 101 as now being decided in view of Alice Corp. v. CLS Bank International, 573 U.S. __, 134 S. Ct. 2347 (2014) (Alice). This decision has led to a slaughter of patent eligibility of inventions that are computer related.

    This SCOTUS decision is especially unfortunate in this time of technology that is increasingly and fundamentally computer based. Examples include for instance medical MRI machines, on which an invention was recently declared being directed to “an abstract idea” under the Alice decision. You will probably agree that declaring an MRI machine “an abstract idea” is not of this time.

    The Alice decision relates to an outdated state of technology that was once dominated by gears and heavy machinery, which is not always relevant to our current economy. I urge you and your committee to include into your considerations and review the status of 35 USC 101 and to adapt the rules for patent eligibility to the current state of technology. You may want to consider the proposed changes to 35 USC 101 as published by the American Intellectual Property Law Association in the AIPLA Legislative Proposal and Report On Patent Eligible Subject Matter in your discussions related to the STRONGER Patents Act. (end)

  17. jbavis June 22, 2017 9:52 pm

    This bill has already undergone much revision, adding 101 to it will muddy the waters AND draw more animosity from the efficient infringer crowd. Baby steps, pass this bill, work on 101 in the future.

    At a minimum, this bill would provide a huge help to those who are not affected by 101 rejections. Therefore, it is a good start.

  18. Ternary June 22, 2017 11:22 pm

    Let’s not be too timid with this. I do not believe for a moment that letters to Senators will change the objectives in a Bill. The Bill is about IPRs and will likely be limited to IPRs. However, it may impress upon Senators that there is passion within the inventor/IP community about patents, patent eligibility and patent enforcement.

    Please, use this (and any other) opportunity to express our dissatisfaction with the current state of affairs of the US patent system. The anti-patent lobby is not shy about expressing their opinions. It is one thing to blame the faceless “trolls” for patent misconduct, but an entirely different matter when actual inventors and patent owners (presumably valuable and valued sources of innovation) start to complain about being squeezed out by lawmakers and the laws they make.

    I believe that the drafters/supporters of the STRONGER Patents Act have a serious concern about the current state of our patent system and that we are possibly engaged in damaging an important economic engine. They need anecdotal stories to support their decisions. Currently, most of the patent anecdotes are negative ones about “trolls” and they still form a powerful narrative in Committee Hearings. Independent inventors have to provide anecdotal counterweight.

    It is time that the people with a real interest (especially independent inventors and patent owners) make our voices heard, every time a patent issue comes up. Speak up and speak out!

  19. William Miller June 23, 2017 9:04 am

    Intellectual property rights are important but within the United States there is a failed system of economics, financial accounting and laws with gaps that ignore public and private investments in intangible capital. The gaps block innovation and GDP growth. Here are two examples.
    First – Trade driven by offshoring currently ignores the theft of investments in public intangible capital and that theft has caused a large loss in manufacturing jobs in America. A change in trade policy can return many manufacturing jobs to America created with innovation and protected by patents and the change will stop most additional losses.
    The right legal argument requires a new law that would recognize trade policy doesn’t account for the theft of public intangible capital (IC) financed with public investments. Economics, financial accounting and capitalism currently ignores the theft of public IC by a company that does offshoring where the IC is a product of public investments in national defense, federal R&D, domestic security, healthcare, public education and infrastructure.
    Trade policy currently protects the theft of many types of private IC such as patents but ignores the theft of public IC. The theft of public IC occurs when business operations at a company with jobs and factories are first established in America with public IC created as a result of public investments in IC that get translated into business IC and then moved offshore with proven business capabilities (both tangible and intangible capital) consisting of knowledge, tools, technology and processes. Since 1992, IC has been a larger part of business investments as a part of GDP in America than tangible capital.
    Theft of public IC in offshoring creates a negative externality in economics that is nearly identical to pollution of public resources penalized in environmental regulation laws. The federal government currently doesn’t measure the flows of IC in trade. Measuring the flows of IC created with public investments is a prerequisite for properly governing offshoring in globalization. The new international activity in Integrated Reporting is attempting to change financial reporting in governments and businesses (and fix injustice in capitalism) to measure both tangible capital and IC.
    Regulations on offshoring should require repayment of the apportioned public investments that produced the IC used for manufacturing operations at a company with a tax of at least 20% on the value of traded goods by companies that sent goods back to the native country from offshored factories. The revenue from the tax should be used to support innovation including entrepreneurship in America.
    Second – Theft of private IC contributed by employees and ignored in financial accounting is the main reason wages have been suppressed by decades. And fair wages are important to facilitate incentive compensation for employees that produce innovation within corporations such as entrepreneurs.

  20. Night Writer June 23, 2017 9:05 am

    @18 Ternary: Great comment. I would add, though, that without money and donations we probably have very little chance of changing the patent system.

    Just look at where the burners of the patent system get their money. Goodlatte? Google and the like. And, in fact, every one that is trying to burn the patent system down (including O-I-like-Google-Bucks) got or gets their campaign money from Google and the like. Their influence is greater than Goldman Sachs.

    Without a PAC that feeds our supporters, we will lose.

  21. Anon doe June 25, 2017 8:40 pm

    This bill does the opposite of what it claims to do, it will just give people incentives do research and development outside of the united states, and will put foreign companies at a disadvantage.

    https://www.eff.org/deeplinks/2017/06/how-the-stronger-patents-act-would-send-innovation-overseas

  22. Anon June 27, 2017 7:52 am

    Anon doe,

    Consider the source: the eff is one of the most virulent anti-patent groups around, and their propaganda should be dismissed outright.

    If anything, showing that the eff opposes the Stronger Patents Act all the more shows that the Act should be passed.

  23. The Time Is Now To Act June 27, 2017 6:34 pm

    Anon doe @ 21 – really?? Either you do not work in the innovation industry and are ignorant, you do work in the innovation industry and have an anti-patent agenda to promote such trash or someone is paying you for your time to post trash links and your are a blog troll.

    The writers of that EFF nonsense are FUNDED by the original big tech offshoring entities that have been spending massive amounts of American money on inventing outside the U.S. Senator Coons’ proposed act would actually *attract* and *re-capture* much needed innovation capital to the U.S. and thwart those who desire to weaken this great land.

    Those same eff backers make local deals with any and every government they can; making it in their BEST INTEREST to play the American patent system against the other systems. Of course, while still benefiting from incorporation in America and co-opting the inventions of our innovators here.

    Based on obvious issues with your grammar and prose, the first thought that comes to mind is that you are one of those paid blog trolls working from an offshore facility.

    Maybe try another paid blog posting assignment like Globe and Mail UK? Also, kindly spend a few minutes studying the meaning of the word PATRIOT.