TAKEAWAY: If enacted, the STRONGER Patents Act may significantly benefit patent holders by at least curbing patent challenges at the PTAB. Even if not enacted, aspects of the bill suggest a legislative pushback against recent court decisions.
In June 2017, the Support Technology and Research for Our Nation’s Growth and Economic Resilience (STRONGER) Patents Act of 2017 was introduced into the U.S. Senate. The bipartisan group of introducing senators posit that the U.S. patent system has suffered in recent years as a result of a number of Supreme Court decisions and unintended consequences of new post-grant administrative proceedings at the USPTO, undermining investor confidence and weakening economic prospects.
The STRONGER Patents Act focuses on inter partes review and post-grant review proceedings that were created under the 2011 America Invents Act. The bill would require proceedings before the Patent Trial and Appeals Board (PTAB) to follow the claim construction and burden of proof standards that would be applied if the matter was before a district court. Specifically, a challenger before the PTAB would be required to show unpatentability by clear and convincing evidence, a patent would be presumed valid, and the patent would be interpreted by the PTAB under the ordinary meaning standard, not the broadest reasonable interpretation standard. In an effort to eliminate conflicting patent validity determinations, the bill also bars challenging a patent in a district court or before the International Trade Commission once an inter partes review is instituted before the PTAB. Moreover, the bill would limit the number of challenges to a patent, while also making it easier to get an injunction and to prove infringement, particularly induced infringement.
Even though the STRONGER Patents Act was introduced by a bipartisan group of senators, the bill appears to have a low likelihood of passing. The bill has received vocal opposition from technology companies, and Congress appears to have its hands full with proposed healthcare and tax legislation. Nevertheless, elements of the STRONGER Patents Act may be implemented in the future to harmonize procedures before the PTAB with district court litigation. Furthermore, the bill signifies a push to strengthen protection for patent owners, running contrary to several recent court decisions and the high IPR petitioner success rate at the PTAB.