THE SCOTUS failed to pass four other legislations for patent protection strengthening to even be possible.

A reliable and robust intellectual property (IP) system is a pillar of the nation’s innovation system. In an era when economic growth, global competitiveness, and national security are all predicated on relative strengths of national innovation systems, the United States needs to take deliberate steps to clarify and strengthen its IP framework.

Indeed, while patents have become more and more difficult to obtain, maintain, and enforce in the United States, China and Europe have moved to make their patent systems more competitive. Notably, China has taken to speed up the adjudication of certain IP cases. It is grooming judges who are technically trained professionals, clarifying rules on patent eligibility, and lowering court costs. There are, of course, lots of problems still with the Chinese patent system, but China is affirmatively working to improve it to its national benefit. The United States needs to do the same. A strong innovation economy cannot exist without a strong IP system.

To maintain a competitive innovation system in this competitive global environment, the United States needs to tackle four major initiatives to build a strong, reliable, and predictable IP ecosystem, as identified by a roundtable of experts  by the Renewing American Innovation Project at CSIS.

Action 1: Promote Broader Access through Better Data

Women and minority inventors have made some of the most significant inventions in the history of the United States. However, according to a  by the U.S. Patent and Trademark Office (USPTO)'s Office of the Chief Economist, only 21.9 percent of all U.S. patents in 2019 listed women as inventors, and women represented only 12.8 percent of all inventor-patentees in the United States. Bipartisan and bicameral lawmakers introduced  and  which aimed to help the USPTO better understand the personal challenges faced by women and minorities applying for patents. Had these pieces of proposed legislation been passed, they would have directed the USPTO to voluntarily collect demographic data from patent applicants, including gender, race, military service, and veteran status. The laws would also have required the USPTO to issue reports on the data it collects and make the data available to the public so that outside researchers would be able to conduct their own analyses and provide insight into the various patent disparities that exist in the United States. This legislation is still a good idea.

Action 2: Clarify Patent Eligibility Requirements

In order to obtain a patent in the United States, the invention for which an application is filed must satisfy certain statutory requirements in Title 35 of the United States Code, such as novelty () and non-obviousness (). Subject matter eligibility () is another statutory requirement that must be satisfied, and this one on particular has been debated for many years in the United States. The U.S. Supreme Court's 2014 decision in  created a two-part patent test to determine whether a patent application recites patentable subject matter. However, this two-part patent eligibility test  to apply. This has led to uncertainty for innovators and investors, along with unpredictable business results. In 2022, Senator Thom Tillis introduced  with the goal of resolving the confusion surrounding Section 101, but the legislation has not yet passed.

Action 3: Strengthen Patent Enforceability

Even if a court finds that a patent has been infringed, it is very difficult for the patent holder to obtain an injunction in the United States. This is because the , in its 2006 decision in , decided that injunctions are no longer the default response of the legal system when patent theft is proven. In other words, if a company steals another company's intellectual property and uses that intellectual property to develop a competing business, the infringing company is better off paying the damages awarded in court over the years. The patentee cannot exercise their right to exclude the infringer from the market. Congress should consider restoring the presumption that an injunction is an appropriate remedy when a patent is found to be infringed.

Action 4: Clarify Patent Validity

 established administrative procedures, including "" and "," to allow third-party challenges to patent validity before the U.S. Patent Trial and Appeal Board (PTAB). The hurdles for raising challenges at the PTAB  lower than in district court litigation, which has led to numerous petitions against patentees. In addition, repeated attacks on the same patent are possible between courts and the PTAB, preventing the patent owner from achieving quiet title. As a result, concerns have arisen that this institutional design is undermining the U.S. patent system. In 2017 and again in 2019, Senators Chris Coons (D-DE) and Tom Cotton (R-AR) introduced  to try to remedy these and related concerns with respect to the PTAB. A new version of this bill is expected to be introduced soon.

A strong intellectual property regime is a pillar of U.S. economic and technological competitiveness and has provided incentives for the invention and commercialization of countless essential technologies enjoyed around the world. Addressing these four issues will help the United States secure and strengthen its intellectual property rights and reinforce its innovation system.

WASHINGTON (24 April 2018) – Today, the United States Supreme Court released their decision regarding the Oil States Energy Services, LLC v. Greene’s Energy Group, LLC et al., stating that Intellectual Property Review (IPR) proceedings, which are held before an executive agency tribunal of the U.S. Patent and Trademark Office (USPTO), are constitutional.

“The Supreme Court missed an opportunity,” said Maura Moran, former VP of Government Relations for the IEEE-USA. “The Justices have blessed a patent review process that puts small and independent inventors at a tremendous disadvantage within our patent system. IP lawyers, like myself, who work with small businesses and startups know how hard it is to protect intellectual property rights under our current system.”

IEEE-USA believes that the U.S. Supreme Court has failed to consider how the current system treats smaller patent applicants. In today’s decision, the Supreme Court endorsed a two-step patent process for obtaining a patent – first, applicants must fight their way through the USPTO to obtain a patent, and then they must return to the USPTO to fight the battle again. The Supreme Court failed to notice how the two-step process requires patent applicants to meet two entirely different standards of proof, dramatically increasing the cost of getting and defending a patent.

With the higher rate of patent invalidation in the IPR than in Federal court, the two-step process significantly reduces the likelihood of winning and defending a valid patent. This will dramatically increase costs, harming especially small businesses and start-ups.

“This decision highlights the need for Congress to repair damage done to our intellectual property system,” continued Moran. “We look forward to working with Sen. Coons and Rep. Massie as they work to restore the legal protections that have made America the most innovative and entrepreneurial country in the world.”

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