Testimony on the STRONGER Patents Act before the Senate Judiciary Committee, Intellectual Property Subcommittee

29 Pages Posted: 2 Oct 2019 Last revised: 6 Oct 2019

See all articles by Adam Mossoff

Adam Mossoff

George Mason University - Antonin Scalia Law School, Faculty

Date Written: September 11, 2019

Abstract

This invited testimony was presented at a hearing on the STRONGER Patents Act before the Senate Judiciary Committee, Intellectual Property Subcommittee, on September 11, 2019. It explains how the STRONGER Patents Act addresses two sources of uncertainty, instability and weakness in the U.S. patent system today. First, the bill permanently would end the willy-nilly operations of the Patent Trial & Appeal Board (PTAB), an administrative tribunal created by Congress in 2011 to cancel issued patents. The PTAB engages in numerous procedural “shenanigans” that have produced extremely high cancellation rates, earning it the moniker of a “death squad” for patents. The STRONGER Patents Act imposes structural reforms on the PTAB by hardwiring into it necessary limitations on arbitrary action. Second, the bill abrogates the Supreme Court’s 2006 decision in eBay v. MercExchange, which created a new test for issuing injunctions for the ongoing infringement of a valid patent. By eliminating the classic legal test of a presumptive injunction for an ongoing violation of a valid property right, eBay has led to a significant drop in courts issuing injunctions for all patent owners. Both the PTAB and eBay have created a cloud over the titles of patents, incentivizing “efficient infringement” by large companies and hampering the economic function of patents in driving licensing and other commercial activities in the innovation economy. Thus, the STRONGER Patents Act represents much-needed reform. It reestablishes reliable and effective patent rights, stable legal institutions, and the rule of law in the patent system — essential features of all legal property rights in driving economic growth in innovation economies.

Keywords: Coons, Tillis, Cotton, Stivers, Foster, Iancu, Kappos, USPTO, due process, serial petitions, panel stacking, BRI, phillips, estoppel, Cuozzo, SAS, administrative law, remedies law, equity

Suggested Citation

Mossoff, Adam, Testimony on the STRONGER Patents Act before the Senate Judiciary Committee, Intellectual Property Subcommittee (September 11, 2019). George Mason Law & Economics Research Paper No. 19-32, Available at SSRN: https://ssrn.com/abstract=3457804 or http://dx.doi.org/10.2139/ssrn.3457804

Adam Mossoff (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-9577 (Phone)

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