On December 18, 2019, H.R. 5478 was introduced by introduced by Representatives Danny K. Davis (D-IL) and Paul A. Gosar, D.D.S. (R-AZ), and on January 28, 2020, it was referred to the Subcommittee on Courts, Intellectual Property, and the Internet. This Act would restore patent protection for inventors and mitigate a generation of laws, regulations, and court decisions discouraging innovation by failing to secure to inventors the exclusive rights to their discoveries.
It is crucial that this Act is passed this year because our patent system is in crisis. The text of the Act states “Recent changes to patent laws and procedures and Supreme Court decisions have adversely affected inventors such that the promise of Article 1, section 8 of the Constitution of ‘securing for limited times to inventors the exclusive right to their discoveries’ is no longer attainable.” The biggest change to the U. S. patent system was made by the America Inventors Act of 2011,
The Act states that “Inventors are denied the fundamental right to ‘exclude others’ by the Supreme Court’s 2006 decision in eBay Inc. v. MercExchange, LLC.” Thus, inventors have lost their injunctive rights granted by the Constitution. It also states that “Inventors were stripped of the right to file suit in their own judicial district by the Supreme Court’s 2017 decision in TC Heartland LLC v. Kraft Foods Group Brands LLC.”
Imagine if you invested in a house, moved in, started to enjoy it, and then had squatters arrive, whom you can’t legally kick out. Yes, you could charge them rent, but if you can’t kick them out, they have no incentive to pay! They would just keep squatting and living in your house for free. That’s what has happened to our patent system.
The ability to stop others from infringing on inventor’s patent rights was what helped big tech companies years ago. Amazon never would have existed without Jeff Bezos’ patent for “the one-click purchase” that he licensed to Apple to use for their app store. Amazon and Microsoft are helped to grow by their patent licensing revenue.
Now, large companies are stealing patents and inventors can’t stop them from using the technology. These large corporations are choosing to spend years in court in a process called “efficient infringement,” by paying legal fees to harm new innovation by inventors instead of paying fair licensing royalties to grow the new innovation. The inventors have to incur extensive legal fees to protect their patents, which often bankrupts them if they can even afford to initiate a lawsuit.
While American innovation is faltering to grow here, China has out legislated America, (learning from our mistakes by mandatory licensing and punitive damages on intentional infringement to quickly grow innovation. Their strong patent legislation is growing their economy exponentially. They now have a billion-dollar start-up every three days in crucial fields like AI, 5G, and other new technologies, while in America we have none.
Instead, we only have large USA corporations stealing innovation from small companies, then bankrupting them in Patent Trial and Review Board (PTAB) trials by judges appointed by the USPTO at a rate of around 86%.
For further information on the patent crisis, you may watch the trailer for the documentary Invalidated: The Shredding of the U.S. Patent System The full version is available on Amazon and iTunes.
Attempts to undo the damage of the America Invents Act of 2011 and Supreme Court decisions aren’t new. There were three bills related to patents/inventor rights were introduced in the 115th Congress (2017-2018), but they never got out of committee for a vote on the House floor:
H.R.6557, Inventor Protection Act – “To amend title 35, United States Code, to restore patent rights to inventors, and for other purposes.” It was designed to restore patent protection for inventors by reversing a generation of laws and regulations. (Sponsored by Rep. Dana Rohrbacher, R-CA)
S.1390, Stronger Patents Act of 2017 – A bill to strengthen the position of the United States as the world’s leading innovator by amending title 35, United States Code, to protect the property rights of the inventors that grow the country’s economy. (Sponsored by Sen Chris Coons (D-DE)
H.R.6264 – Restoring America’s Leadership in Innovation Act of 2018 – A bill “to promote the leadership of the United States in global innovation by establishing a robust patent system that restores and protects the right of inventors to own and enforce private property rights in inventions and discoveries, and for other purposes.” (Sponsored by Rep. Thomas Massie (R-KY)
H.R 5478 is a simple bill that would protect the inventor’s rights. The main provisions of H.R. 5478 are:
“SEC. 3. Inventor protections.
(a) Inventor-Owned patent. —Section 100 of title 35, United States Code, is amended by adding at the end the following:
(k) The term ‘inventor-owned patent’ means a patent with respect to which the inventor of the invention claimed by the patent or an entity controlled by that inventor—
(1) is the patentee; and
(2) holds all ‘substantial rights.’
(b) Inventor-Owned patent protections.—Chapter 32 of title 35, United States Code, is amended by adding at the end the following new section:
§ 330. Inventor protections
(a) Protection from post-issuance proceedings in the united states patent and trademark office. —The United States Patent and Trademark Office shall not undertake a proceeding to reexamine, review, or otherwise make a determination about the validity of an inventor-owned patent without the consent of the patentee.
(b) Choice of venue. —Any civil action for infringement of an inventor-owned patent or any action for a declaratory judgment that an inventor-owned patent is invalid or not infringed may be brought in a judicial district—”
As the findings cited in the Act state, “Inventors have contributed significantly to innovation in the United States and their continued dedication to inventing and sharing solutions to modern technical challenges is essential for the United States to maintain leadership in the global economy.” It is crucial for inventors to be able to have some assurance that the rights to their patents will be reviewed in a consistent manner so that they will be able to secure investors and get their product into the marketplace.
Josh Malone, volunteer advocate and inventor of top-selling Bunch O Balloons emailed me, “Our patent system was intended to incentivize individual inventors but has recently been captured by trillion-dollar corporations. Small businesses have virtually no chance when it costs tens of millions of dollars and takes a decade or more to bring an invention thief to justice. Inventors need to make their voices heard by contacting their Senators and Representatives to tell them to repair our innovation system bypassing the Inventor Rights Act.”
In order to ensure that H.R. 5478 gets out of committee review and is voted upon by Congress, more co-sponsors are needed. Please urge your Congressional Representative to co-sponsor H.R. 5478, which would restore patent protection for inventors and mitigate the laws, regulations, and court decisions that have discouraged innovation by failing to secure to inventors the exclusive rights to their discoveries.