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Collins statement on Patent Trial and Appeal Board decisions – House Judiciary Committee

” . . . the Federal Circuit continues to make decisions that illustrate what a mess the U.S. patent system has become. . . . The [Patent Eligibility Test] has upended confidence in patents in all industries from software and biotech innovations to mechanical inventions. Sadly, this begs the question: Are any patents safe from attack on eligibility grounds? A cloud of uncertainty hangs over almost every issued patent, significantly raising risks for those who invest in research and development.”

WASHINGTON — Rep. Doug Collins (R-Ga.), Ranking Member of the House Judiciary Committee, offered the following statement at today’s hearing, “The Patent Trial and Appeal Board and the Appointments Clause: Implications of Recent Court Decisions.”

Below are the remarks as prepared.

Ranking Member Collins: Thank you, Chairman Johnson. I appreciate the opportunity to discuss these important issues.

A strong patent system is unquestionably critical to American economic success. We have hundreds of years of life-changing inventions and countless new industries to prove it. Without a strong patent system, American businesses will struggle to compete globally. U.S. patent laws must continue to protect new inventions because these protections give companies confidence that they can invest in the research and development of amazing new technologies. Confidence in the enforceability of patents is also necessary for small businesses that rely on patent protections to secure funding, which helps the businesses.

For this very reason, I’m working with my colleagues on both sides of the aisle and in both chambers of Congress to rewrite the U.S. Supreme Court’s flawed patent eligibility test. The Supreme Court’s test upended hundreds of years of patent certainty. Several of my colleagues and I, along with most patent lawyers, have seen case after case in which inventions are wiped of their patents regardless of the fact that the invention is clearly eligible. In other instances, patents have been rejected even though the lower courts found an invention to be “brilliant.”

Unfortunately, the Federal Circuit continues to make decisions that illustrate what a mess the U.S. patent system has become. For example, the Federal Circuit recently held that a garage door opener and a method for making a car driveshaft were not eligible for patenting. The test has upended confidence in patents in all industries from software and biotech innovations to mechanical inventions. Sadly, this begs the question: Are any patents safe from attack on eligibility grounds? A cloud of uncertainty hangs over almost every issued patent, significantly raising risks for those who invest in research and development.

Along with the eligibility test, many stakeholders have raised concerns about the way the Patent Trial and Appeal Board (PTAB) has decided cases. These stakeholders argued that the PTAB had established procedures skewed against patent owners, and they complained the PTAB’s rules and precedent heavily favored challengers. Stakeholders were concerned it was too easy for challengers to mount repeat attacks on the same patent, and complained that the PTAB’s standards for proving invalidity were far below those that apply in district courts. Under new leadership at the PTO, many find these proceedings more balanced, but they still argue the proceedings lack many of the procedural safeguards available in federal court.

The Federal Circuit’s recent decision holding the appointment of Administrative Patent Judges unconstitutional raises similar concerns. The court seemed most troubled that no one in the agency had the authority to review a PTAB decision. The court, in an effort to overcome constitutional deficiency, struck statutory provisions that limit the removal of judges so that all of the more than 250 Administrative Patent Judges need not be Senate confirmed. I would like to know if our panel of experts agree with that analysis.

Invalidating a patent is the exercise of tremendous authority. The Constitution’s Appointments Clause ensures that government officials — who wield tremendous executive branch authority — endure rigorous vetting inherent in the presidential appointment process and Senate confirmation. Should the agency mistakenly invalidate a patent, that decision could mean the end of a small business or that a copycat gets away with stealing another company’s technology. Given the Federal Circuit’s decisions clearly illustrate potential flaws in the structure of the PTAB, I wonder which agency officials should have the final say in such decisions.

With so much at stake, it is critical we get this right. That is why I am looking forward to hearing from all of the witnesses here today on the constitutionality of the appointment of Administrative Patent Judges, on recommendations for fixing any deficiencies, and on the importance of getting this right — not only to help inventors and businesses, but to help foster the development of new technologies and continue improving the U.S. economy.

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