American Inventor Restoration Act
July 9, 2018
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 these measure are passed into law.
1. Injunctions- Restore injunctions for all patentees -large and small, making them mandatory after a judgment of infringement is entered, absent exceptional circumstances (overturning SCOTUS eBay v Mercexchange). Declare express legislative intent that inventors and small businesses have a fair expectation they will be able to commercialize by themselves or with others and that injunctions level an otherwise insurmountable advantage market incumbents have.
2. What is patentable: Restore a broad scope of patentability by minimally amending and/or replacing the existing patent statutes. Fix all the problems that have significantly eroded long and clearly established law affecting patentability (sect 112, 101, 102, and 103), including court decisions (e.g., Benson/Flook/Bilski/Mayo/Myriad/Alice, Ariad, KSR, etc.) and law (e.g., the AIA).
3. Eliminate all administrative post issue reviews of patents, except for those requested by applicant or patent holder.
4. Claims: Address/repair case law regarding how to claim, interpret and construct, etc. the claims to an invention. Fix Ariad, Festo and all other issues specifically addressing claims drafting/analysis/construction/doctrine of equivalents/means-plus-function, etc. Declare intent of Congress that in the interest of the country considering the risks, difficulties and expense in creating and patenting new technologies that the courts strive to preserve and strengthen issued patents.
5. Repeal AIA, or fix all defects separate from admin review, expedited processing and patentability (first-to-file, 1 year grace period, 102 prior art definitions, etc).
6. Create a new circuit court with exclusive and final jurisdiction to hear appeals in patent cases from the district courts.
7. Declaration that inventions are common law and natural private property entitled to at least all the protections of real property. They are not government granted privileges. The govt is merely entrusted with protecting them.
8. After exhausting all remedies with the PTO after final rejection, Applicants can appeal to the courts for jury trial -pre issue, and sue for costs.
9. Provide for the revival of any abandoned application or previously issued patent that would have been affected by the passage of this bill.
10. Reset the clock to foreign file for any active US patent to the date this bill is passed into law or the date the patent issues, whichever is later.
11. Provide that any patent issued after the SCOTUS eBay decision may be asserted independently of any related issued patents, irrespective of any prior assertion settlements or judgements of those related patents.
12. 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.
13. 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.
14. 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.
15. Undo expedited processing, or substantially reduce or waive the fees for small entities (defined by the Small Business Administration).
16. A ‘prove it period’ option where inventors can file an application and then delay prosecution (and associated expenses) for up to five years until able to prove market acceptance and obtain funding.
17. Criminal and punitive penalties for owners and managers of repeat infringers, or in the case of continued infringement once infringement is found.
18. 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.
19. Mandatory triple damages and attorney fees if a large entity infringes a small entity patent after a judgment of infringement is entered.
20. Any invention patentable at time of filing shall not be deemed subsequently ineligible or otherwise unpatentable.
21. Fair filing requirement measure- return to Rule 84 of the Federal Rules of Civil Procedure and its use of Form 18, etc. Enact reciprocal rules, such as penalties for defendants for asserting bogus claim construction, etc.
22. 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).
23. 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.
24. Permanently end fee diversion from the PTO into other branches of government.
25. 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.
26. Delay any publication of applications until at least a patent issues from them, or let any issued patent suffice.
27. 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.
28. 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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