Administrative review standards aren’t patent protection. Topical affs must expand coverage or eligibility.

Just as the Supreme Court has seemingly taken an increased interest in patent law in recent years, as indicated by the rise in the number of patent law cases for which it has granted certiorari,261 Congress has also recently enacted several major patent reforms. Congress enacted the AIA in 2011, which introduced a number of new administrative procedures for challenging patents and restructured the substantive patent laws.262 Congress also enacted specialized procedures governing patent disputes involving drugs (the Hatch-Waxman Act)263 and biologics (BPCIA).264 To the extent that Congress wishes to further reform the law governing patents, it could do so under the powers granted to it in the Constitution.265 Indeed, various reforms have been proposed over the past several years.

For example, Congress could modify the patentable subject matter requirement under Section

101. As explained above,266 some stakeholders have criticized the Supreme Court and Federal

Circuit for allegedly not applying the governing two-step test in a predictable manner,267 and some judges on the Federal Circuit have suggested that reform is necessary.268 Although potential draft language was circulated before the three days of hearings on Section 101 last summer,269 ultimately no bill was introduced.

PTAB administrative reviews are another area of potential and proposed reform. For example, the proposed Support Technology and Research for Our Nation’s Growth and Economic Resilience Patents Act of 2019 (STRONGER Patents Act; S. 2082) would make it harder to invalidate patents in PTAB proceedings by applying the presumption of validity and increasing the burden of proof, among other changes.270 Conversely, other stakeholders argue that recent changes in PTAB procedures have made it too difficult to invalidate patents and thus undermine the purpose of those reviews.271 Those stakeholders urge Congress to examine the frequency with which the PTAB exercises its discretion to deny administrative review without addressing the merits of the challenge.272

Other reforms are aimed at addressing perceived misuses of the patent system by various entities. For example, the proposed Advancing America’s Interests Act (H.R. 8037) aims to “modernize the ITC process”273 by, among other things, limiting the scope of activities that meet the domestic industry requirement for invoking ITC jurisdiction.274 According to one sponsor, this will ensure that the ITC “is not misused by patent licensing entities.”275 As another example, there have been several proposals in the 116th Congress to address alleged misuse of the patent system by pharmaceutical manufacturers.276

As technologies grow and change, additional areas of patent law may interest Congress and may prove ripe for reform. For example, if use of AI devices continues to rise, Congress could overturn the PTO’s decision that AI devices may not be listed as inventors on patent applications.277 Whatever changes occur, the importance of patents and IP to the American economy suggests that patent law will remain an area of interest and activity in the years to come.