The Restoring the America Invents Act (R-AIA) is wrong on many levels. Just the act of introducing and suggesting this legislation be passed makes one wonder whether the reason is due to naivety or corruption.
Read the Letter from 200 Concerned Texas Inventors to Senator Cornyn
The America Invents Act of 2011 (AIA) was packaged and sold to Congress and the president as what was required to put an end to patent trolls, those non-producing entities (NPEs), attacking businesses with frivolous lawsuits and to protect small entities from abusive patent litigation.
According to the U.S. Patent and Trademark Office (USPTO) website, the AIA was enacted “to modernize the U.S. patent system and strengthen America’s competitiveness in the global economy.”
The Reality of the Current Patent System
There is absolutely no doubt that what was said and what has been done are polar opposites.
The AIA and the Patent Trial and Appeal Board (PTAB) it created have destroyed countess lives and the startup businesses of small, independent inventors through the Inter Partes Review (IPR) and Post Grant Review (PGR) proceedings, enacted by the AIA, supposedly designed to “fix bad patents.”
Alabama Senator Jeff Sessions, who supported the AIA, stated that the PTAB would “allow invalid patents that were mistakenly issued by the PTO to be fixed early in their life, before they disrupt an entire industry or result in expensive litigation.”
Yet, numerous patents of independent inventors and small business innovators that had been commercially successful for years, were novel and unique when invented, and even won industry recognitions and awards (including Oscars and Emmys) for their valuable and beneficial contributions have been invalidated because multi-national corporations, including those controlled by the Chinese Communist Party (CCP), wanted to use patented technology without authorization, and discovered they could get it cheaply via the PTAB.
At the ten-year anniversary of the AIA, the results are in: the experiment was a terrible failure.
Almost 3,000 patents have been invalidated – a shocking 84% of those reviewed. Inventor morale is at rock bottom. The PTAB has increased cost and duration of patents disputes, often overruling examiners, federal judges, and juries. Rather than helping small businesses, PTAB is utilized mostly by large corporations usually against much smaller competitors. Startups are moving to other industries and other countries. The U.S. has fallen from the leader in global innovation for the first time in two centuries. The biggest corporations in the world have multiplied and solidified their market dominance, squashing competitors with better technology, frequently aided by the USPTO/PTAB.
Doubling Down to Destroy Patents
So how did Congress respond to this failed experiment? Senator Leahy (D-VT) and Senator Cornyn (R-TX) introduced legislation to make it easier for big corporations to steal technology by invalidating their competitors’ patents at the PTAB. Doubling down on the error from 2011, they named their latest bill the “Restoring the America Invents Act,” suggesting the PTAB hasn’t been as hard on inventors as they originally intended!
According to IAM media: Jim Carmichael of Carmichael IP in Virginia, who represents patent owners in PTAB proceedings, believes that the bill is bad news for rights holders. “As far as I can tell, pretty much everything is to favor patent challengers.”
Leahy’s new bill greatly expands the grounds available for Big Tech/Big Corp to engage in IPR proceedings against the lesser financed small inventor or startup. This provision must have come from the patent killers’ wish list submitted to the PTAB, aka the Patent Death Squad.
The Restoring the America Invents Act would place handcuffs on the USPTO Director to where the Director would be limited in the denial of instituting an IPR to only those cases where “the same or substantially the same prior art or arguments previously were presented to the Office.” Thus, even if there is already an upcoming trial date set in a district court, the Director would have no choice but to allow the IPR take place.
And, the legislation dictates how courts make decisions when the PTAB is conducting an IPR. Is this, perhaps, a step in changing our legal system, basically placing the authority of an unconstitutional administrative tribunal over our actual courts.
The above are just a few of the points.
However, the whole bill basically further enables Big Tech/Big Corp.
According to the Innovation Alliance, the Restoring the AIA legislation “would allow gaming of the PTAB by Big Tech firms and other large corporate infringers and undermine Patent Rights of smaller inventors.”
Additionally, the group statement reads, “The most frequent users of the PTAB process are the same Big Tech companies that many in Congress believe are already too powerful. We believe this bill would help make them more powerful by giving them additional tools to game the PTAB process.”
The End OR A New Beginning of American Innovation?
Then combine the Restoring the America Invents Act with the fact that Biden is strongly considering attorneys directly from the infringer lobby for the vacant USPTO Director’s seat, just as he and Obama did when they nominated Michelle Lee, former deputy general counsel and head of patents and patent strategy at Google.
If Restoring the AIA passes and Biden gets his choice, Innovation in America is over.
US Inventor, a 501(c)(4) non-profit corporation advocating for the “little guy” inventors, small businesses and startups, supports legislation to reverse the harmful effects of the AIA.
According to Policy Director Josh Malone, “We support the Inventor Rights Act by Representative Danny Davis of Illinois and the Restoring American Leadership in Innovation Act by Representative Thomas Massie of Kentucky. These bills would undo the harms caused by Congress and the Supreme Court in recent years and would unleash the power of American ingenuity.”
The Davis bill and/or the Massie bill would bring closer to what our U.S. Constitution requires in Article I Section 8 Powers of Congress, Clause 8: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”