Draft Bill Dead on Arrival

Last week, the “Restoring America’s Leadership in Innovation Act” was again floated by Republican Congressman Thomas Massie (KY). The same draft Bill was previously released in 2018 and 2020. Backed only by a handful of relatively powerless House Republicans, the Bill proposes a number of highly controversial measures. But, if you are going to dream, dream big!

The Bill (here) proposes, for example:

-Overturning Alice and Mayo 101 SCOTUS decisions; -Overturn Ebay and presume irreparable harm; -Reverting back to a first-to-invent system; -Abolish the PTAB and revert back to the BPAI; -Require a presumption of validity, and clear and convincing evidence before the PTO; -Overturn Oil States, and make a patent a personal property right; -Reexamination only by consent of patent owner; and -(my personal favorite) Toll a patent’s term while invalidity is being litigated.

The Massie Bill has never been taken seriously for obvious reasons.

For example, should invalid patents be repeatedly rewarded with extended term based upon the litigious nature of the licensing entity? — of course not. Abolish any review of the expert agency to correct mistakes, and even where the Patent Owner agrees to a reexamination the USPTO must presume the patent valid? Mistakes would be insulated from correction under that system. Unfortunately, patent examination is an imperfect process; mistakes are routinely made. The system can never elevate patents to this level without inviting bad actors to wreak havoc on U.S. industry.

While there are certainly pro-patent changes that could be made to the system, and should be made, these kind of extremist proposals are counterproductive. Indeed, during the last effort to address 101, it was the lack of reasonable compromise that doomed an otherwise promising effort.