Proposed Measures

December 7, 2016

America must save our patent system from those who seek to weaken or destroy it. To truly strengthen the patent system and restore constitutionally recognized and ‘common law’ property rights for all patentees as acknowledged and envisioned by America’s founders for large and small entities, the changes that are crucially needed include:

Provide that any patent so affected or would have been had these provision been in affect, be reinstated and/or have its term extended accordingly. Reset the clock for statutes limiting enforcement and recovery for infringement for such patents from the date one or more of these measure are passed into law.

1.    Restore injunctions for all patentees -large and small, making them mandatory after a judgment of infringement is entered.
2.    Restore the teaching, suggestion, and motivation basis for determining patentability. Repeal, reverse, recall, vacate or nullify all laws and decisions (America Invents Act, Alice, Mercexchange, Bilski, Octane, KSR, sect 101 of the Patent Act, etc) which have significantly eroded long and clearly established rights as recognized in the Constitution and elsewhere by our founders.
3.    Eliminate all administrative post issue reviews of patents, except for those requested by applicant or patent holder.
4.    Ensure that each patent issued has an effective term of at least 17 years by extension, including any issued prior to the date of passage of this provision.
5.    Restore the law so that settlements in the course of litigation are not considered in damages as had been the law for over 100 years.
6.    Provide that patent holders may bring suit in any venue where their patents are infringed and where the infringer has a meaningful connection or presence.
7.    Undo expedited processing, or substantially reduce or waive the fees for small entities (defined by the Small Business Administration).
8.    Criminal and punitive penalties for owners and managers of repeat infringers, or in the case of continued infringement once infringement is found.
9.    Full faith and credit in any previous action is to be given any patent for which a federal court has rendered a decision of validity.
10.    Mandatory triple damages and attorney fees if a large entity infringes a small entity patent after a judgment of infringement is entered.
11.    Streamlined, expedited and low cost civil procedure for cases below a specified damages mark such as $10 million…for example, one year to trial, immediate obviousness invalidity hearing, no post issue administrative review (IPR or PGR, etc) allowed, no Summary Judgments allowed, no Markman hearing and limited discovery (no depositions like in criminal cases).
12.    Require that the PTO Director have long standing strong ties with and the confidence of inventors and other small entities, and that at least half the members of the PTO’s Patent Public Advisory Committee (PPAC) be small entities or represent primarily small entities.
13.    Permanently end fee diversion from the PTO into other branches of government.
14.    Mandate that the PTO will keep a database with all relevant data regarding filed and issued patents (entity size, date filed (+issd), application type, date appealed/decided, etc.) and make it publicly available on its web site for all parties to query and extract data.
15.    Delay any publication of applications until at least a patent issues from them, or let any issued patent suffice.
16.    Establish regional patent trial courts with subject matter juris over district courts, or require district court judges to take a minimal amount of CLE courses per year (1 day, etc) before they can take a patent case.
17.    Create a loan fund for small entity ($15M annual sales or less) patent holders for suits against non small entities funded by defendants at 1% of awarded damages or settlements.

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