TAKEAWAY: Senator Leahy’s accession to the Senate IP Subcommittee Chair is seen as unlikely to advance patent reform over at least the next two years.
In what came as a surprise to many, Senator Patrick Leahy (D-VT) has been named as the Chair of the Subcommittee on Intellectual Property of the Senate Judiciary Committee. Senator Leahy, a co-author of the 2011 Leahy-Smith America Invents Act (AIA), has historically made improving patent quality and combating non-practicing entities key policy issues during his Senate tenure. Among other changes, the AIA moved the U.S. patent system from a “first-to-invent” rule to “first-inventor-to-file,” and established post-grant challenges at the USPTO presided over by the Patent Trial and Appeal Board (PTAB).
Senator Leahy takes over for previous ranking member Senator Christopher Coons (D-DE) in view of a rules change intended to distribute subcommittee leadership more evenly. Senator Coons has advocated for patent reform in recent years. In 2017, he helped introduce the bipartisan STRONGER (Support Technology & Research for Our Nation’s Growth and Economic Resilience) Patents Act in an effort to address some criticisms of the AIA, including patent eligibility standards under 35 U.S.C. § 101 and pleading standards for inter partes review (IPR). The Act, which was reintroduced in 2019, proposed to clarify § 101 requirements and to give patents a presumption of validity during third-party IPR challenges, consistent with district court litigation. Currently, third-parties do not need to overcome such a presumption during IPR proceedings.
Senator Leahy is seen as unlikely to advance legislation aimed at reforming the patent system during his tenure as IP Subcommittee Chair. Additionally, congressional action is doubtful before the Supreme Court decides a question on the constitutionality of PTAB judge appointments in United States v. Arthrex Inc. That case was argued on March 1, 2021, with a decision expected later this year. Should the Court strike down parts of the AIA on judge appointments, however, this may prompt renewed interest in Congress on broader legislative reforms.