{"id":6733,"date":"2018-03-20T11:51:18","date_gmt":"2018-03-20T11:51:18","guid":{"rendered":"https:\/\/cpip.gmu.edu\/?p=6733"},"modified":"2026-04-08T19:10:23","modified_gmt":"2026-04-08T19:10:23","slug":"the-stronger-patents-act-the-house-receives-its-own-legislation-to-protect-our-innovation-economy","status":"publish","type":"post","link":"https:\/\/blogs.uakron.edu\/ualawip\/2018\/03\/20\/the-stronger-patents-act-the-house-receives-its-own-legislation-to-protect-our-innovation-economy\/","title":{"rendered":"[Archived Post] The STRONGER Patents Act: The House Receives Its Own Legislation to Protect Our Innovation Economy"},"content":{"rendered":"

Today, Representatives Steve Stivers (R-OH) and Bill Foster (D-IL) introduced the Support Technology & Research for Our Nation\u2019s Growth and Economic Resilience (STRONGER) Patents Act of 2018. This important piece of legislation will protect our innovation economy by restoring stable and effective property rights for inventors. This legislation mirrors a bill already introduced in the Senate<\/a>, which I have previously discussed<\/a>.<\/p>\n

The STRONGER Patents Act accomplishes three key goals to protect innovators. First, the Act will make substantial improvements to post-issuance proceedings in the USPTO to protect patent owners from administrative proceedings run amok. Second, it will confirm the status of patents as property rights, including restoring the ability of patent owners to obtain injunctions as a matter of course. Third, it will eliminate fee diversion from the USPTO, assuring that innovators are obtaining the quality services they are paying for.<\/p>\n

First and foremost, the STRONGER Patents Act aims to restore balance to post-issuance review of patents administered by the USPTO\u2019s Patent Trial and Appeal Board (PTAB). The creation of the PTAB was a massive regulatory overreach<\/a> to correct a perceived problem that could have been better addressed by providing more resources towards initial examination. While the USPTO has long been responsible for issuing patents after a detailed examination, it has recently taken on the role of killing patents the same USPTO previously issued. What the USPTO gives with the one hand, it takes with the other<\/a>.<\/p>\n

Data<\/a> analyzing PTAB outcomes demonstrates just how dire the situation has become. Coordinated and repetitive challenges<\/a> to patent validity have made it impossible for patent owners to ever feel confident in the value and enforceability of their property rights. In some cases, more than 20<\/a> petitions have been filed on a single patent. Although recent headway has been made to address<\/a> this issue in the administrative context, it only listed factors to be used when evaluating serial petitions. A more complete statutory solution that prohibits serial petitions except in limited circumstances is necessary to fully protect innovators and provide certainty that these protections will continue.<\/p>\n

The kill rate of patents by the PTAB is remarkable. In only 16%<\/a> of final written decisions at the PTAB does the patent survive unscathed. The actual impact on patent owners is far worse. Disclaimer and settlement<\/a> are alternate ways a patent owner can lose at the PTAB prior to a final written decision. Thus, the fact that only 4% of petitions<\/a> result in a final written decision of patentability is more reflective of the burden patent owners faced when dragged into PTAB proceedings.<\/p>\n

For these reasons, the PTAB has been known as a \u201cdeath squad<\/a>.\u201d This sentiment has been expressed not only by those who are disturbed by the PTAB\u2019s behavior, but also those\u2014such as a former chief judge<\/a> of the PTAB\u2014who are perpetuating it. The list of specific patents<\/a> that have been invalidated at the PTAB is mind-boggling, such as an advanced detector for detecting leaks in gas lines.<\/p>\n

There are even examples where the PTAB has invalidated a patent that had previously been upheld<\/a> by the Federal Circuit Court of Appeals. One recent examination further found that there have been at least 58 patents that were upheld in federal district courts that were invalidated in the PTAB on the same statutory grounds<\/em><\/a>. The different results are not mere happenstance but are the result of strategic behavior<\/a> by petitioners to strategically abuse the procedures of PTAB proceedings.<\/p>\n

It has been well known that the procedures have been stacked against patent owners<\/a> from day one. We and others have noted how broadly<\/a> construing claims<\/a>, multiple filings<\/a> against the same patent by the same challengers, and the inability<\/a> to amend claims, among other abuses<\/a>, severely disadvantage patent owners in PTAB proceedings.<\/p>\n

With the STRONGER Patents Act, these proceedings will move closer to a fair fight to truly examine patent validity. There are many aspects to this legislation that will improve the PTAB, such as:<\/p>\n

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