Patent reform is critical to protecting American inventors

Throughout American history, patents have been key to making the United States the world’s leader in innovation. They have spurred the development of the telegraph, the telephone, electrical systems, automobiles, aviation, computers, smartphones, and numerous life-saving drugs.

But recent changes in U.S. patent law threaten to dethrone the United States as the world’s technology leader — and slow American economic growth.

Federal patent law has long granted American inventors a limited time right — currently 20 years from the date a patent application is filed – “to exclude others from making, using offering for sale, or selling” their novel inventions. Subject to certain conditions, the U.S. Patent Office must grant a patent to an applicant who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” This language on its face provides broad authorization for the grant of patents.

Over the last decade, however, the U.S. Supreme Court has cut back significantly on what inventions it deems “patent eligible,” particularly in such areas as biotechnology, computer-implemented inventions, and software. Also, in its 2006 eBay decision, the Court made it much harder for patent holders to get an injunction (an order) to block others from using their invention without legal permission.

As a result, today “there are many other parts of the world that have more expansive views of what can be patented, including Europe, Australia, and even China.”

What’s more, the American Invents Act, a 2011 federal law intended to “modernize” the American patent system, created a “Patent and Trademark Appeals Board” (PTAB) within the Patent Office. The PTAB responds to requests by third parties to review recently issued patents. It has invalidated claims in more than four-fifths of the patents it has analyzed – very shortly after those patents had been assessed and deemed valid by other PTO patent experts, the patent examiner corps.

Patent experts (including leading judges, scholars, practitioners, and former PTO heads) have pointed out that PTAB’s record of overturning the vast bulk of patents presented for review is far out of line with historic rates of patent reversals by the courts. That high reversal rate, those experts say, shows that the PTAB process is seriously defective.

PTAB rulings have been a particular blow to small inventors, whose ability to attract seed capital to promote their innovative ventures is being seriously threatened.

Read more of this The Hill op-ed by Alden Abbott by clicking here.

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