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More legislative action on patents, as STRONGER Act returns

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Another bipartisan, bicameral patent bill has arrived, as a group of senators and representatives earlier this week re-introduced the Support Technology & Research for Our Nation’s Growth and Economic Resilience (STRONGER) Patents Act for the third year in a row.

Rep. Steve Stivers (R-OH) speaking on patent reform at AEI Thursday, June 20, 2019 – John Boal © American Enterprise Institute

The past few months, the patent world has been occupied with a different bipartisan, bicameral measure targeting patent eligibility, and the Senate Judiciary Committee conducted three full days’ worth of hearings on the proposed legislation.

And now, as promised last month in his keynote address at AEI, Rep. Steve Stivers (R-OH) reintroduced the measure, H.R. 5340, along with Rep. Bill Foster (D-IL) and 14 co-sponsors. It was also reintroduced in the Senate by Sens. Chris Coons (D-DE) and Tom Cotton (R-AR) with four bipartisan co-sponsors. Stivers and Foster had introduced the STRONGER Patents Act in the House for the first time in 2018, about a year after Coons first brought it to the Senate.

“We must ensure,” Stivers said in a press release, “that the innovators are able to protect their next big idea . . . and provide entrepreneurs the protection they need to develop intellectual property and bring new ideas to market for everyone to benefit.”

For his part, Coons emphasized that “we must act now to recalibrate the U.S. patent system, so that our inventors’ and entrepreneurs’ ideas and businesses can continue to fuel the American innovation economy,” noting that “we are at risk of losing our reputation as the gold standard for patent protection because U.S. patents have become too difficult to enforce and too unreliable to justify critical investments in emerging technologies.”

The 2019 version of the STRONGER Patents Act, similar to its earlier incarnations, would primarily conform the less stringent burden of proof currently used in patent trial to invalidate a patent with the stricter “clear and convincing” standard used in district courts.

The measure would also ease the way for a patent holder to obtain an injunction halting sales of infringing products. At the same time, it would also impose tight federal limits on “rogue and opaque letters” demanding payment for alleged patent infringement, largely tracking the previously-introduced TROL Act.

Several advocacy groups cheered the reintroduction of STRONGER. The Innovation Alliance stated that the measure “takes critical steps to strengthen patent protections and promote American innovation and job creation. Importantly, it would help to reverse the alarming decline of the U.S. patent system and innovation economy we have seen in recent years.”

Similarly, the Medical Device Manufacturers Association praised the bill, noting that “in order to develop the cures and therapies of tomorrow, innovators need a predictable patent system in place” and expressing its hope that the bill “will help restore the legal protections required to sustain our nation’s leadership in medical technology innovation.”

Last year, Josh Landau of the Computer & Communications Industry Association, who participated on AEI’s patent reform panel last month, likened the STRONGER Act to a “horror movie villain” returning to haunt the patent system that would “gut the extremely successful inter partes review procedure and overturn more than a decade of Supreme Court precedent, crippling the ability of small and medium enterprises to develop products without fear.”

Whether STRONGER sees action in the current Congress remains to be seen. In his AEI remarks, Stivers expressed cautious optimism that the measure will emerge from committee at some point soon. But either way, there can be no question that efforts to enact patent legislation continue to intensify.

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