Senator Patrick Leahy (D-VT) has announced that he won’t be seeking re-election to the Senate for a ninth term. First elected in 1974, Senator Leahy has spent nearly 50 years in the Senate, focused on a wide variety of issues. Intellectual property is one of those issues, and it’s an issue where he’s been a leader in the Senate, addressing issues in patent, copyright, and trademark law, and even creating the semiconductor mask protection system. (He also helped out with a couple Batman movies in between.)
But perhaps most importantly, Senator Leahy sponsored the most significant reform of the patent system in the past 50 years—the bill bearing his name, the Leahy-Smith America Invents Act. The AIAAmerica Invents Act of 2011. AIA made modest reforms, most notably moving the U.S. to a first-inventor-to-file system more aligned with foreign practice, but also including expanding prior user rights to all patent-eligible subject matter, and instituting a post-grant review proceeding. created the post-grant reviewA procedure by which a third-party may contest issuance of a patent at the USPTO within a short period (9 months) after issuance. Introduced to the U.S. by the AIA. The EPO has a similar procedure. system, including inter partes review, updated litigation rules to limit the ability of non-practicing entities to engage in abusive litigation, changed the U.S. to a first-inventor-to-file system, and updated the law of prior artPrior art is the knowledge in the field of a patent that was publicly available before the patent was filed. to reflect an increasingly global innovation environment.
And it worked—it worked extremely well. NPENon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it. More patent litigation cost and frequency began to drop significantly, even while operating companies litigated at roughly the same rates. Chilling effects on startups were reduced as they found a mechanism to defend themselves without the huge expense of full-scale litigation.
But then something changed. The PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. implemented discretionary denials, among other changes that made it harder to access IPRIntellectual Property Rights. Usually associated with formal legal rights such as patent, trademark, and copyright. Intellectual property is a broader term that encompasses knowledge, information, and data considered proprietary whether or not it is formally protected. and made IPRIntellectual Property Rights. Usually associated with formal legal rights such as patent, trademark, and copyright. Intellectual property is a broader term that encompasses knowledge, information, and data considered proprietary whether or not it is formally protected. a more expensive and complex procedure. And, unsurprisingly, the AIA’s benefits began to reverse—mostly to the benefit of NPEs.
Earlier this year, reviewing the damage done to one of his signature achievements, Sen. Leahy—alongside Sen. Cornyn (R-TX)—introduced the Restoring the America Invents Act to repair the scuttled vessel of IPRIntellectual Property Rights. Usually associated with formal legal rights such as patent, trademark, and copyright. Intellectual property is a broader term that encompasses knowledge, information, and data considered proprietary whether or not it is formally protected.. That leaves a little over a year for Congress to consider passing RAIA before Sen. Leahy takes a well-deserved retirement.
Restoring the America Invents Act to the vision Leahy intended by passing his final patent bill would be a fitting closing act in Leahy’s story as America’s chief patent legislator.
