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New patent legislation would address some of the damage caused by several court decisions and by Congress. It would restore the fundamental constitutional principle that a US patent guarantees certain rights to private property.
Reps. Thomas Mbadie (R-KY) and Marcy Kaptur (D-OH) presented H.R. 6264, the "Restoring America's Leadership in Innovation Act"
. Promoters of 6264 include the IEEE-USA, the Small Business Technology Council, the Manufacturing Policy Project, the US Business & Industry Council, the American Business Defense Council and the Conservatives for Property Rights [19659003]. industrial sectors, welcomed the legislation in a statement. A blog from the Center for the Protection of Intellectual Property of George Mason University discussed the bill and the need to do it. Conservatives for Property Rights tweeted his support for Mbadie and Kaptur's bill.
Section 2 of the Mbadie-Kaptur Bill states that the work of the US government is the protection of life, liberty and property. It is important to legislate because the Solicitor General of the United States and the Patent and Trademark Office under the direction of Michelle Lee and Acting Director Joe Matal argued that patents do not guarantee anything. More than "public rights". This theory degrades the property rights of an invention, which, as any teacher, can understand, is a form of property that did not exist until the day of the invention. 39, inventor created it. There is nothing "public" about the new property or the rights attached to it. RALIA clarifies this simple proposition.
Section 3 restores the first inventor standard and ditches in the first place, and restores the grace period of one year before the introduction of a patent. The first basis for granting a patent aligns with the language of our original patent law, the "first and true inventor". It democratizes US patents – if you invented it, it belongs to you and you should get the patent.
The first-to-file standard reduced exclusive rights, particularly for independent inventors, and detracted from collaboration between research groups, according to Industry Week. The IEEE-USA reports "increased uncertainty", which tends to scare investors.
A significant period of grace is important. Before the AIA, the inventors had one year from the first public disclosure or sale before having to file a patent. This allowed the inventors to discuss the invention with potential investors, to work with others to perfect the design and test and improve the invention before putting the paperwork to the PTO.
Since AIA, "The grace period is so limited that the inventors Gene Quinn
coupled with the prior art of the AIA founding the" actual filing date "of an invention No matter where in the world, the interaction served to consider the grace period as non-existent, or perhaps only available to repair an unfortunate error – the first-to-file standard and the loss of the period of grace. thanks to innovation and the ability to reduce an invention to a higher risk and cost.
Clause 4 repeals the provisions of the AIA establishing inter partes revision and subsequent proceedings, the Patent Judiciary and Appeal Board invalidates patents at considerably higher rates than in federal courts – about 80 per cent of patent applications are set aside at PTAB compared to about 30 per cent in a sort Article 87. About 87% of the disputed patents are brought before a real court and PTAB. Faster, better, cheaper, it is not the case
There is a strong argument to remove the criticism of PTAB. PTAB's process and judicial standards include ongoing requirements that would prevent speculators and mischief makers, allowing opponents to pursue repeated challenges against the same patents (even those that a federal court has previously upheld), level lower evidence, loosey-goosey standards of evidence, a much broader standard of construction claims and worse. If PTAB basically examines the duplicate Article III courts, but without the protections of fairness and certainty once a case is decided, then get rid of the foreign forums. That's what RALIA does.
Article 5 abolishes PTAB and revives the former Appeals Board and patent interferences of the pre-AIA. This removes the opposing administrative nightmare set up by the AIA and restores the means for inventors to work with the PTO in the event that the examination of a patent results in a patent denial. BPAI can invalidate a patent only in the case of an ex parte review. The patentee could appeal this decision of invalidation to the Federal Circuit (a federal court with patent expertise).
This RALIA provision completes section 4. The BPAI administrative function was previously completed. The ex parte reviews from 1981 to 2016 resulted in a much more reasonable set of results. Of the 10,979 ex parte petitions accepted, only 12% saw the cancellation of all patent claims – much more equitable and extremely reasonable than the cancellation of 65% of all claims of A patent by the AIA IPR. Two-thirds of the patents in ex-AIA ex parte reviews have seen some claims upheld and 21% of patents have all claims upheld. A return to the examination of patents during the examinations, with the possibility of modifying the claims, favors a better quality of the patents, a greater capacity to benefit from the right of exclusiveness and a calming of the title which is sorely lacking after AIA
. Under federal budget constraints known as sequestration, some of the fees paid to agencies, including the PTO, are diverted to the US treasury. The end of the tax misappropriation by the PTO has enjoyed broad support (with the exception of the Congress's appropriators). These are the fees, not the general tax revenues. Full funding of the PTO promotes faster patent examination and better patent quality. This is particularly important when the term of the patent begins at the time of the patent application rather than at the beginning of the patent grant.
Article 7 restores patentable subject matter as it was before the Supreme Court overturned everything. This provision clarifies that any preliminary badessment of the patentability of a claimed invention would result in patentability, unless it "exists in nature regardless of any human activity and prior to that, or exists only in the human mind. Second. The determination of patentability must be independent of novelty, utility and evidence, as well as the inventive concept of the claimed invention.
This provision effectively cancels the adverse decisions in AMP v. Myriad Genetics, Mayo Collaborative Services c. Ariosa Diagnostics c. Sequenom, involving life sciences technologies such as diagnostics and genetic therapies. "Unfortunately, recent Supreme Court decisions in Mayo and Myriad have significantly reduced the ability of innovators to obtain effective patent protection for DNA molecules used in diagnostic tests and for diagnostic test methods per se. ".
The erroneous opinions of the court in Alice Corp. v. CLS Bank and Bilski v. Kappos, which disrupted the patentability of software. Software is everything from automobiles to medical devices to ATMs and microchips. Protecting the software code by copyright does not do the business; you need a patent to protect the function or process that the software performs.
Clause 8 repeals the provisions of the AIA that spell out the grounds for the novelty of an invention, by restoring the pre-AIA 35 U.S.C. Second. 102. This part of the Mbadie-Kaptur bill adds wording prohibiting any information shared with the PTO about the fact that an invention would become a state of the art unless a patent is issued.
This article realigns the determination of the novelty of an invention or discovery with the principle of first pre-AIA inventor of Section 3 for the grant of patents and a grace period of one year. year. The confidentiality measure in Section 8 ensures that PTO does not make prior disclosure of a patent-pending invention.
What leads to Article 9. A provision clarifies and reinforces – and accurately reflects the wording of the Constitution – that a patent protects a right of ownership private in an invention or discovery. The measure restores the right to be heard in a court referred to in Article III, just as the fifth and seventh amendments guarantee. This measure is greatly needed in light of the erroneous decision in oil states that relegate patent rights to nothing more than being considered a "public franchise".
This section also sets the orientation of Impression Products c. Lexmark International a patent holder may place on licensees regarding postal use or resale. Lexmark's opinion has adverse implications for the licensing and transfer of patents as well as the long-standing ability to pursue a patent infringement on unauthorized conduct or alternative practices. Lexmark weakens patent rights, reduces the value of patents and decreases the right of exclusion. This provision restores these patent rights
Article 10 terminates the automatic publication of US patent applications 18 months after filing. This measure complements the confidentiality requirements of Section 8 regarding pre-patent inventions. As Pat Choate and Joan Maginnis report, automatic publishing can have the unfortunate effect of disclosing inventions before the end of patent examination. Automatic publication is detrimental to US competitiveness by giving Chinese and other intellectual property thieves a head start to develop a market for a new invention, which has not yet been patented. A published application prior to the patent may risk making the invention no more novel.
Article 11 of the RALIA reinforces the legal presumption of validity of a US patent issued. This presumption applies in any federal or state place. It applies to every patent claim, that it depends on another claim. Thus, an invalid claim will not automatically void the other dependent claims; each must be evaluated on its own merits and each of them presided over the validity. The bill specifies that the person who invokes the invalidity of a patent has the burden of proof, against the patent or against any patent claim challenged. The opponent must prove the disability by a clear and convincing standard of proof – the standard level of evidence in other property cases.
These measures set out clear and simple elements that make it more difficult to invalidate a granted patent. This would cancel PTAB's easy-to-age patent revocation and rectify the federal circuit. The combination of a strong presumption across the board and from each party, along with the burden of proof at all levels, should help protect intellectual property rights against gambling and the costly legal tactics employed like rather than the legitimate legal settlement of a dispute.
This section creates a new patent property rights protection. Under RALIA, the term of a disputed patent is suspended as long as the validity of a patent persists. It's like stopping timing at basketball for loose shots.
Article 12 rejects the eBay v. MercExchange makes it almost impossible to obtain a permanent injunction against a patent infringer. This bill requires the courts to presume irreparable harm in the case of patent infringement. The presumption is rebuttable by clear and convincing evidence. All patentees, whether they manufacture or sell their patented product or not, and exclusive licensees get this back to eBay's prior injunction.
eBay's court prevented a counterfeiter from continuing to manufacture, sell or use a patented invention. The only patent holders of appeal now have to try to obtain a license agreement. But what is the leverage to force counterfeiters to the bargaining table? And if they negotiate, counterfeiters have the power to underpay what the invention is worth. This clears the right to exclude that a patent is supposed to give.
Section 13 restores the pre-AIA mode requirement. Patent applicants must again disclose the "preferred embodiment" of the invention, the best way to reduce the invention to practice. This requires that the inventor undertakes to use the best way to achieve the invention. This is an important part of the patent contract – full disclosure of the limits and limits that the inventor intends to give it.
In conclusion, like the STRONGER Patent Act, RALIA seeks to change the direction of our patent system. This bill is just a few more steps in the new direction. It is based on private property rights and guaranteed rights to its inventions, which restores the certainty, applicability and reliability of a US patent. These reforms would be very constructive
Image Source: Deposit Photos.
James Edwards
consults on intellectual property, innovation in health care and regulatory issues and policy. Among other clients, Edwards advises the non-profit Eagle Forum on Patent Policy and is co-director of the inventor's project. He participates in the Patent Task Force of the Medical Device Manufacturers Association. Edwards oversees start-ups and start-up companies, primarily in the medical technology field, and participates in several IP-focused projects.
Edwards was legislative director of Rep. Ed Bryant, R-Tenn. from the US House Judiciary Committee and dealt with legislative issues in the field of intellectual property. Edwards also worked on the staff of Rep John Duncan, R-Tenn., The Judicial Committee of the US Senate, and Senator Strom Thurmond, R-S.C. In addition, he was a senior executive of an badociation at the Healthcare Leadership Council. Edwards earned a PhD from the University of Tennessee, and bachelor's and master's degrees from the University of Georgia.
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