Massie Introduces Bill to Repeal PTAB, Abrogate Alice

By IPWatchdog
November 9, 2021

Representative Thomas Massie (R-KY) on November 5 introduced a bill, titled the Restoring America’s Leadership in Innovation Act of 2021 (RALIA), HR 5874, that would repeal the Patent Trial and Appeal Board (PTAB), return the patent system to a “first-to-invent” model, rather than first-to-file, and would end automatic publication of patents. Inventor groups such as US Inventor and conservative groups are supporting the legislation.

“Regrettably, Congress’s 2011 enactment of the Leahy-Smith ‘America Invents Act’ has worked in concert with several Supreme Court decisions to erode [the Constitutional] protection’s strength and value,” Massie said in a press release. He added:

“A return to a ‘first to invent’ patent protection system ensures that inventors and the investors who back them can be confident that their innovative work and ideas will be safeguarded. Patents should protect those who innovate, not those who win the race to the patent office.”

According to the text of the bill, the PTAB, as well as inter partes review and post grant review, would be entirely abolished, and the Board of Patent Appeals and Interferences reestablished.

Section 101 patentability would also be clarified. The exception to eligibility would read as follows:

(b) EXCEPTION.—A claimed invention is ineligible
patent subject matter under subsection (a) if the claimed invention as a whole, as understood by a person having
ordinary skill in the art, exists in nature independently
of and prior to any human activity, or exists solely in the
human mind.

The eligibility standard would be:

(c) ELIGIBILITY STANDARD.—The eligibility of a
claimed invention under subsections (a) and (b) shall be  determined without regard as to the requirements or conditions of sections 102, 103, and 112 of this title, or the claimed invention’s inventive concept.

And Alice v. CLS Bank and other relevant case law would be abrogated:

(b) SENSE OF CONGRESS.—It is the sense of Congress that—

(1) the Supreme Court’s recent jurisprudence concerning subject matter patentability has harmed the progress of science and the useful arts;

…….

(3) this amendment effectively abrogates Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014), Bilski v. Kappos, 561 U.S. 593 (2010), Association for Molecular Pathology v. Myriad Genetics, 569 U.S. 576 (2013), Mayo Collaborative Services v. Prometheus Laboratories, 566 U.S. 66 (2012), and its predecessors to ensure that life sciences discoveries, computer software, and similar inventions and discoveries are patentable, and that those patents are enforceable.

The bill is not bipartisan. The initial co-sponsors are Louie Gohmert (R-TX), Paul Gosar (R-AZ) and Tom McClintock (R-CA). Massie introduced this bill in 2018 as well.

IPWatchdog Founder and CEO Gene Quinn has noted that abolishing the PTAB, at this point in the eligibility debate, “simply will not happen” and dubbed it a “politically infeasible and impossible demand at the expense of other available solutions to improve the PTAB.”

 

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Discuss this

There are currently 9 Comments comments. Join the discussion.

  1. Pro Say November 9, 2021 5:44 pm

    Bravo! Exactly what America needs.

    With Communist China breathing down our necks, there’s no time to lose.

  2. Here to correct misinformation November 9, 2021 5:48 pm

    Those windmills ain’t gonna tilt at themselves, I guess.

  3. Greg DeLassus November 9, 2021 6:53 pm

    The statutory language looks good. Pity that the bill does not appear to have legs to go anywhere.

  4. Capt. Obvious November 9, 2021 9:40 pm

    Trump has a better chance seeing his face carved into Mt. Rushmore than this bill ever seeing the light of day.

  5. Anon November 9, 2021 10:23 pm

    Where are all of my Liberal Left friends and why is this bill NOT bi-partisan?

    (I asked the same question in 2018)

  6. Anon November 9, 2021 10:24 pm

    Htcm,

    Can you explain what point you are trying to make?

  7. B November 10, 2021 12:05 am

    @ Greg DeLassus “The statutory language looks good. Pity that the bill does not appear to have legs to go anywhere”

    Exactly what I was thinking.

    However, I can guarantee you there are CAFC judges who will read “A claimed invention is ineligible patent subject matter under subsection (a) if the claimed invention as a whole, as understood by a person having ordinary skill in the art, . . . exists solely in the human mind,” and hold, “*DERP* well this invention does exist solely in the human mind except for the computer.”

    Further, the Supreme court will read “The eligibility of a claimed invention under subsections (a) and (b) shall be determined without regard as to the requirements or conditions of sections 102, 103, and 112 of this title, or the claimed invention’s inventive concept,” then hold for a new exception under 101 based on a lack of “innovative creativity” or some similar b.s.

    You can’t idiot-proof statutes

    .

    The eligibility of a
    claimed invention under subsections (a) and (b) shall be determined without regard as to the requirements or conditions of sections 102, 103, and 112 of this title, or the claimed invention’s inventive concept.

  8. Curious November 10, 2021 10:49 am

    Amendments to 35 USC 282

    (b)Defenses.—The following shall be the sole defenses in any action involving the validity or infringement of a patent and shall be pleaded:
    (1)Noninfringement, absence of liability for infringement or unenforceability.
    (2)Invalidity of the patent or any claim in suit on any ground
    explicitly specified in part II as a condition for patentability.
    (3)Invalidity of the patent or any claim in suit for failure to comply with—
    (A)any requirement of section 112, except that the failure to disclose the best mode shall not be a basis on which any claim of a patent may be canceled or held invalid or otherwise unenforceable; or
    (B)any requirement of section 251.
    (4)Any other fact or act
    explicitly made a defense by this title.”

    I added four words. These four words should have already been read into the statute. 35 USC 101 is NOT a condition for patentability. It was not intended to be a condition for patentability. If defendants want more defenses (laches, inequitable conduct, etc.), then it is up to them to lobby Congress to amend 35 USC 282. As I’m sure Anon would agree, it is time for Congress ensure that the role of writing patent laws solely belongs to Congress and is not to be shared with the Courts.

    Congress makes policy and the Courts interpret the law/constitution.

  9. Model 101 November 10, 2021 11:05 am

    Very nice!!!!

    What about retroactivity?

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