The Judiciary Committee again postponed the meeting to finalize the language for the patent legislation to Thursday this week, May 8th. But with numerous significant reasons to scrap the effort mounting, there are still Senators pushing to pass this terrible legislation!
First of all, for anyone that believes the propaganda that there is a frivolous patent litigation problem, the Supreme Court decision last week should take care of it. In the past, judges very rarely awarded legal expenses to the prevailing side because the situation had to be “exceptional.” The Supreme Court decision defines “exceptional” very broadly, giving judges great leeway here. A patent holder bringing a frivolous case will face significant risk. But there are still Senators pushing for fatal “Loser Pays.”
Secondly, it is now becoming known that the new “post issuance procedures” created by the America Invents Act (AIA) are invalidating an extremely high percentage of patents. These are the new methods of invalidating an issued patent – post grant review, inter partes review, and covered business method (CBM) review. Approximately 80% of patents challenged with these procedures are taken up, and once in the system, 95% of them end up invalidated.
Based on these numbers, a company infringing a patent and being sued for it now has about a 76% chance of invalidating the patent. This is way beyond what makes sense. The Patent Trial and Appeal Board (PTAB), which the AIA created for these procedures, has been called “death squads killing property rights” by Federal Circuit Chief Justice Randall Rader.
Knowing how these post issuance procedures are destroying patent rights, how could a rational person want to expand them? The only rational thing to do is stop the current patent legislation effort and take a hard look at the damage the America Invents Act has caused to see if it can be undone. But no, part of the new patent legislation is the expansion of these “death squad” post issuance procedures!
And then the combination of extreme requirements for demand letters, enhanced pleading requirements and limited discovery will put a patent holder in the situation that 1) he has to sue rather than start a dialogue to resolve the situation, and 2) he will have to plead in greater detail than the information he has will allow – putting him at a great disadvantage to the infringer.
This patent legislation is fatal for inventors. It will eliminate your ability to defend your patents. It turns the American Patent System into a tool used by large corporations to crush independent inventors.
Once and for all, let’s put an end to it. If you haven’t already read and signed the online petition, please do so (http://www.independentinventorsofamerica.org/readsign-the-petiton/). Even if you have emailed and called your Senators many times, do it again. Tell them that the Supreme Court Decision on fee shifting eliminates the need to enact any further “Loser Pays.” Tell them that breaking information shows that the new “post issuance procedures” are invalidating 76% of patents, and that the only rational thing to do is stop everything and study the damage. Tell them that the pending legislation enables corporations to crush independent inventors.
The future of American invention depends on us stopping this legislation. Please help in this effort. We can win this.
Randy Landreneau, Founder
Independent Inventors of America