Joff Wild

The STRONGER Patent Act - a bipartisan bill introduced into the US Senate yesterday by Democrats Chris Coons (Delaware), Dick Durbin (Illinois) and Mazie Hirono (Hawaii), and Arkansas Republican Tom Cotton – is almost certain not to make it onto the statute books; but it is important nonetheless.

Proposing to “to strengthen the US patent system through implementing measures to make it easier and less costly for patent holders to enforce their patents”, the legislation builds on the STRONG Patent Act championed by Senator Coons in the previous Congress. Among its provisions are ones that would make injunctive relief more common and available to all types of entity; significantly reform the inter partes review regime in favour of the patent owner; and put a permanent end to fee diversion from the US Patent and Trademark Office.

“We must work together to ensure that the patent laws keep up with the innovators, so their ideas and businesses can fuel the American economy for generations to come,” said Coons. “This means working to ensure that a patent continues to play its historic role in enabling inventors and small businesses to get funding and protect their ideas from being copied by larger corporate infringers.”

This is the first significant patent-related legislation to be introduced in the current Congress; and what makes it important is that it is unashamedly advocating a pro-patentee position. Ronald Reagan once stated that "if you're explaining, you're losing" and that has been the pro-patent lobby's big problem up to now. In previous Congresses over the last 10 years, it is those who have been seeking to rein-in patent owners who have seized the initiative; putting their opponents on the back foot and forcing them into negative and technical arguments about why it is wrong to claim that the US is overrun by trolls whose excesses are causing significant harm to the innovation process. The kinds of arguments that all too often cause the eyes of non-patent people to glaze over.

This time, it seems, the pro-patent lobby has taken Reagan's words to heart and put the previous anti-patent pace-setters on the defensive. Accompanying the introduction of the Act yesterday were strong statements in support from the likes of BIO, the American Conservative Union and the Innovation Alliance. All were clearly designed to set the agenda and frame the debate around the idea that the rights of US patent owners have been diminished, and that this is harming the US economy. Now it is the patent-sceptics who are on the back foot, forced into technical explanations about why the STRONGER Patents Act is all wrong (I just love this from the Patent Progress blog I linked to: “Like so much of this bill, in an attempt to address a problem that doesn’t seem to exist in reality, the law is rewritten in incredibly overbroad ways.” Remind you of anything??).

As someone once said, attack is the best form of defence. By getting in first on patent reform in this Congress, Coons and his colleagues have ensured that the debate is on terms they have set. That will make introducing anti-patent legislation look reactive and render it much less potent. Congress is extremely busy already, the Senate especially, so it is highly unlikely that there is going to be anything coming out of the legislature and going to the President’s desk for sign-off in the foreseeable future; but that is not always going to be the case. It has been a struggle to build a pro-patent narrative among political decision-makers in the US over recent years. The STRONGER Patents Act may just change that. It is smart politics.