Senator Orrin Hatch (R-UT), Chairman of the Senate Republican High-Tech Task Force and Former Chairman of the Senate Judiciary Committee, recently wrote an op-ed article on patent reform. Hatch has made significant contributions to the law, including defining generic drug regulation via the Drug Price Competition and Patent Term Restoration Act, or Hatch-Waxman Act, as well as contributing to the America Invents Act (AIA).
In his recent article, Hatch commented on several relevant topics. Firstly, he touched upon so-called “patent trolls”, i.e. those entities that unfairly manipulate the patent process for capital gain. This usually includes obtaining patents for purposes other than producing or selling goods or services. Hatch cited TC Heartland v. Kraft Foods as being a victory against trolling and, specifically, attempting to unfairly win or skew a patent decision based on venue. The TC Heartland case has been reviewed previously in the following Dilworth IP articles: Venue for Patent Infringement Suits to Be Decided By Supreme Court, Supreme Court Hears Oral Arguments in TC Heartland v. Kraft Foods, and Supreme Court Provides Unanimous Ruling on Patent Litigation Venue Case. The Supreme Court ultimately ruled that patent litigation should be initiated in a state where the defendant resides. Refining legal processes would further cut down on abusive trolling practices.
Secondly, Hatch mentioned inter partes review (IPR), a procedure established through the AIA whereby the Patent Trial and Appeal Board tests the validity of a specific patent in relation to 35 U.S.C. § § 102 103. Those in favor of IPR cite that it limits patent trolling. However, there are also opponents of IPR. The current Supreme Court Case Oil States vs. Greene’s Energy Group calls into question whether IPR is unconstitutional. Hatch calls for Congress to evaluate the review process.
Thirdly, Hatch touched on subject matter eligibility and those difficulties faced by the software and pharmaceutical/biotech industries going forward after the Mayo, Myriad, and Alice decisions. Again, Mayo and Myriad called into question the ability to patent natural processes while the two-part patent eligibility test resulted from the Alice ruling. These concerns of the legal system, if changed, would have vast implications going forward. Hatch is scheduled to discuss these issues with the Senate Republican High-Tech Task Force in the coming months.