The 119^th Congress Must Pass the RESTORE Patent Rights Act, the PREVAIL Act, and the PERA Act

It is time for the 119^th Congress to act.  Three bills are in need of passage for the United States to maintain its intellectual property and economic dominance in the world; the RESTORE Patent Rights Act, the PREVAIL Act, and the PERA Act. These three acts will help to curb Big Tech's abuses of the patent system and restore both strength to the patent system and certainty to patent owners.  Protecting US innovation requires seeing past Big Tech's opposition to these Acts by realizing the harm Big Tech has caused to our innovation economy in the United States.

The RESTORE Act (The Realizing Engineering, Science, and Technology Opportunities by Restoring Exclusive) will remedy the weakening of patent rights following the 2006 eBay Inc. v. MercExchange LLC decision where the U.S. Supreme Court abandoned the longstanding principle that a patent owner is presumptively entitled to an injunction once it defends validity and demonstrates infringement.  The ruling reduced the issuance of injunctions for all types of patent owners, both licensors and manufacturers, thus ushering in a period of tremendous uncertainty for patent owners.  Potential injunctive relief is critical to a healthy innovation ecosystem to not only stop an infringer's activities or terminate competition in the marketplace, but also safeguard efficient markets and facilitate the determination of fair market value by market actors. Without injunctions, a system has emerged in which infringers are favored over patent owners, and an ‘infringe now, pay later' strategy is rewarded, otherwise known as Big Tech's efficient infringement.

The PEVAIL (Promoting and Respecting Economically Vital American Innovation Leadership) seeks to fix unintended consequences of the 2011 America Invents Act that have allowed Big Tech to abuse patent owners and continue Big Tech efficient infringement.  The fixes include limiting repetitive PTAB challenges to a patent that would help patent owners achieve some assurance of validity, requiring standing to use the PTAB, end fee diversion from the USPTO, harmonize legal standards between the PTAB and District Court litigation by raising the standard to invalidate to clear and convincing evidence, and seek to prevent influence on PTAB proceedings.

The PERA (Patent Eligibility Restoration Act) would reset the law of patent eligibility in the United States to where it was before the United States Supreme Court changed the law with landmark decisions in Mayo Collaborative Services v. Prometheus Labs., Inc., 566 U.S. 66 (2012) and Alice Corp. v. CLS Bank Int'l, 573 U.S. 208 (2014). PERA explicitly eliminates the so-called judicial exceptions to patent eligibility created by the Supreme Court, which find no support in either the Patent Act or the Constitution. PERA is needed to provide certainty to US innovation economy.  By eliminating and replacing the current judicial exceptions to patent eligibility Congress would reassert its proper Constitutional role to define the law, and in this case what qualifies for patent protection, and put the courts back into their proper lane, which is to interpret the laws passed by Congress; not to make the law up by layering on judicially created requirements not found in the statute.  PERA explicitly provides that eligibility for any useful process, machine, manufacture or composition of matter is “subject only to the exclusions in sub-section (b) and to the further conditions and requirements of this title.” The four exclusions contained in sub-section (b) are limited to:

1. A mathematical formula that is not part of a claimed invention.
2. A process that is substantially economic, financial, business, social, cultural or artistic, even though at least 1 step in the process refers to a machine or manufacture.
3. A mental process performed solely in the human mind, or which occurs in nature wholly independent of any human activity.
4. An unmodified human gene, as the gene exists in the human body.
5. An unmodified natural material, as the material exists in nature.

Action on PERA is needed now as there is a tremendous amount of innovation that the Courts have found directed to a judicial exception to eligible subject matter, thereby allowing Big Tech to infringe and profit over a patent owner's technology.  PERA will help ensure Big Tech is stopped from using the courts to destroy more intellectual property rights.

The time for action on each of the RESTORE Patent Rights Act, the PREVAIL Act, and the PERA Act is now so that the United States is able to maintain its intellectual property and economic dominance in the world.  It is time to vote to pass each of the RESTORE Patent Rights Act, the PREVAIL Act, and the PERA Act.

- Tell your representatives to support the bill  (https://www.house.gov/representatives/find-your-representative)

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