WASHINGTON, D.C. – David Crane, Executive Director of the U.S. Manufacturers Association for Development and Enterprise (US-MADE) – the leading national organization protecting American manufacturers against abusive patent litigation – issued the following statement on the Patent Eligibility Restoration Act (PERA) and Promoting and Respecting Economically Vital American Innovation Leadership Act (PREVAIL), which were reintroduced in the U.S. Senate today:
“For the past three Congresses, the intellectual property debate in the Senate has been dominated by PERA and PREVAIL. The proposals are little changed over the past six years. Both are opposed by every critical industry in the economy including – manufacturers ranging from automakers to high-tech chipmakers, restaurants, retailers, and financial institutions from the smallest credit unions to the largest banks. In fact, the only clear winners under PERA and PREVAIL are drug companies, patent trolls, and litigation investors through which America’s enemies wage patent lawfare proxy wars.”
During PERA and PREVAIL’s highly-contested markup last year, Senate Judiciary Committee Chairman Chuck Grassley reminded his colleagues that when it comes to patent legislation, the Committee precedent has always been that stakeholders build consensus and then bring the consensus solution before the Committee to move forward in a bipartisan fashion. Rather than burning another Congress on bills that will never see the Senate floor, the Senate and House of Representatives should focus on the real issues impacting American innovation and critical American industries:
- Restoring the Rule of Law at the U.S. Patent and Trademark Office (USPTO): As highlighted in a December 2022 Government Accountability Office report, there is a disturbing trend at the USPTO of director interference in Patent Trial and Appeal Board (PTAB) proceedings and the abuse of the limited discretion provided under the America Invents Act. This abuse of agency authority was particularly problematic in cases where agency leadership exerted influence related to judges’ PTAB trial institution decisions. Since then, the USPTO has flatly ignored the law, disregarded judicial precedent, and circumvented the rulemaking process under the guise of discretion. If special interests want to change the law they should come to Congress, not rewrite the statute by administrative fiat. Congress must reassert its authority and the rule of law at the USPTO.
- Enhancing Patent Quality: By any objective standard the USPTO continues to fail in its core mission, spurring American innovation by thoroughly reviewing patent applications and improving patent quality. American leadership in critical technologies and industries must be built on a foundation of high-quality intellectual property that rewards true innovation.
- Protecting American Innovation and Industry from Patent Lawfare: Patent trolls have always been a scourge on American innovation and industry. However, the emergence of litigation investment schemes, including by foreign hedge funds and sovereign wealth funds, are increasingly used by America’s adversaries like Russia and China to wage patent lawfare on U.S. economic interests. Congress should act quickly to pass legislation mandating patent lawsuit investment transparency in federal courts, at the International Trade Commission, and at the USPTO.
Restoring the rule of law at the USPTO, enhancing patent quality, and protecting U.S. industry from the Trojan horse of investor-fueled patent lawfare represent areas where Congress, the USPTO, and American innovators and industry can come together to build consensus.