Leahy Urges Supreme Court To Take Up Case With Major Implications For The U.S. Patent System

(MONDAY, Dec. 20, 2021) – Senator Patrick Leahy (D-Vt.), Chair of the Senate’s Intellectual Property Subcommittee, part of the Senate Judiciary Committee, and Congressman Darrell Issa (R-Calif.) Ranking Member of the House Intellectual Property Subcommittee, Monday filed an amicus brief urging the Supreme Court to hear a case with major implications for the American patent system.

Their official brief explains how a key post-grant review process at the U.S. Patent and Trademark Office (PTO) – created by the Leahy-Smith America Invents Act – is being undercut by new rules the lower courts have put in place.  They explain that the courts have prevented those who challenge a patent at the PTO from obtaining judicial review, discouraging the public from using a process that is critical in weeding out poor-quality patents and undermining the intent of the statute.  Without judicial review, the public will have no recourse from a negative decision, while still being bound by the results.  The brief explains that the case is bigger than the patents in question or the parties in this case, and it does not take a position on those details.  

Ten years ago, Leahy authored the Leahy-Smith America Invents Act (AIA), which created this PTO review process, known as inter partes review, allowing members of the public to challenge a patent’s validity at the PTO directly.  This process provides a faster, less expensive and more accessible avenue than litigation in the courts.  When more than ten thousand small businesses in Vermont and around the country were targeted by entities holding poor-quality patents in 2013, the tool that ultimately ensured that those patents would not be abused again in the future was this PTO review process.

Leahy said:  “I am proud of the legacy we built ten years ago with the Leahy-Smith America Invents Act.  I want to protect the gains we made in the AIA and ensure that our patent system reinforces high-quality patents while ensuring that poor-quality patents don’t disrupt the American economy.  This case is bigger than any two parties or any one sector of the economy.  I hope the Supreme Court will understand the need to maintain a balance that helps start-ups, small businesses, and American manufacturers thrive."

Leahy has long advocated for a strong patent system that ensures that only the highest-quality patents are issued while championing post-grant proceedings like inter partes review that curb the harms posed by poor-quality patents that never should have issued.  He is the author in this Congress of the Restoring the America Invents Act, bipartisan legislation that would bolster the Leahy-Smith America Invents Act by reversing policies put in place during the term of the previous PTO Director that have also undermined inter partes review.    

The brief can be found here

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