PublishedNovember 16, 2021

The Pat-Signal Is Going Dark—Senator Leahy Won’t Seek Re-Election

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 AIA created the post-grant review 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 art to reflect an increasingly global innovation environment.

And it worked—it worked extremely well.  NPE 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 PTAB implemented discretionary denials, among other changes that made it harder to access IPR and made IPR 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 IPR.  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.

Josh Landau

Patent Counsel, CCIA

Joshua Landau is the Patent Counsel at the Computer & Communications Industry Association (CCIA), where he represents and advises the association regarding patent issues.  Mr. Landau joined CCIA from WilmerHale in 2017, where he represented clients in patent litigation, counseling, and prosecution, including trials in both district courts and before the PTAB.

Prior to his time at WilmerHale, Mr. Landau was a Legal Fellow on Senator Al Franken’s Judiciary staff, focusing on privacy and technology issues.  Mr. Landau received his J.D. from Georgetown University Law Center and his B.S.E.E. from the University of Michigan.  Before law school, he spent several years as an automotive engineer, during which time he co-invented technology leading to U.S. Patent No. 6,934,140.

Follow @PatentJosh on Twitter.

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