PublishedOctober 27, 2022

The USPTO Must Restore America Invents Act Proceedings

Over the past decade, the Leahy-Smith America Invents Act of 2011 has been discussed and debated extensively in intellectual property circles. Given the potential for new USPTO rulemaking on the horizon, however, it is worth revisiting why it has become necessary for the Patent Office to restore key AIA proceedings to function as Congress originally intended.

I worked hard for the reforms contained in the America Invents Act (AIA), and applauded its passage as “the kind of reform that is necessary to set America back on track toward a prosperous future” and as a key step to “promote progress and innovation.” The AIA was a critical update to a patent system that was stuck in the past, placing a renewed focus on patent quality and reining in litigation abuses.

Our Founding Fathers considered intellectual property rights essential, going so far as to include them in Congress’s enumerated powers. By passing the AIA, Congress upheld our end of the bargain to promote progress. Analysis has shown that from 2014 to 2019, the AIA resulted in an increase of $2.95 billion in U.S. gross product and $1.41 billion in personal income. Among the largest beneficiaries was the manufacturing industry, which accounted for almost half of the gross product gains. These numbers do not lie. When we make improvements to our patent system, we are also supporting economic growth.

The AIA’s creation of inter partes review (IPR) was a main contributor to this progress. IPR dramatically cut down the costs commonly associated with patent litigation and protected businesses and innovators from being exploited by bad actors who weaponize low-quality patents for their own financial gain. A Loyola Chicago Law Journal study showed that businesses that invest more in R&D are more likely to be the target of patent litigation, meaning that those at the cutting edge of technology were major beneficiaries of IPR.

This is why it has been especially frustrating to watch as key AIA provisions have been undermined in recent years, not by Congress, but from within the USPTO. When the previous USPTO Director unilaterally instituted the NHK-Fintiv rule, he single-handedly weakened protections from meritless infringement litigation that had been in place, and working effectively, since the AIA’s passage.

Now, under new leadership, the USPTO can right this wrong. Director Vidal has already signaled that the Patent Office will most likely be undertaking a formal rulemaking process related to NHK-Fintiv and the recent interim guidance is promising.

I will be watching closely in the coming months for formal rulemaking regarding the Fintiv factors and IPR more generally. Reforms that restore AIA proceedings to their original promise would encourage greater innovation and “promote the Progress of Science and useful Arts.”

Representative Bob Goodlatte

Bob Goodlatte is an American politician, attorney, and lobbyist who served in the United States House of Representatives representing Virginia’s 6th congressional district for 13 terms, including as Chair of the House Judiciary Committee.  Representative Goodlatte was involved with a significant amount of patent reform legislation during his time in office, including being a leading force in passage of the America Invents Act.

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