Restoring America’s Leadership in Innovation Act of 2020

I 116TH CONGRESS 2D SESSION H. R. 7366 To promote the leadership of the United States in global innovation by establishing a robust patent system that restores and protects the right of inventors to own and enforce private property rights in inventions and discoveries, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JUNE 25, 2020 Mr. MASSIE (for himself, Mr. MCCLINTOCK, and Mr. GOSAR) introduced the following bill; which was referred to the Committee on the Judiciary A BILL To promote the leadership of the United States in global innovation by establishing a robust patent system that restores and protects the right of inventors to own and enforce private property rights in inventions and discov- eries, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Restoring America’s Leadership in Innovation Act of 5 2020’’. 6 VerDate Sep 11 2014 00:32 Jul 21, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H7366.IH H7366 dlhill on DSK120RN23PROD with BILLS 2 •HR 7366 IH (b) TABLE OF CONTENTS.—The table of contents for 1 this Act is as follows: 2 Sec. 1. Short title; table of contents. Sec. 2. Findings. Sec. 3. Restoring the right of the first inventor to secure a patent. Sec. 4. Abolishing inter partes and post-grant review. Sec. 5. Abolishing the Patent Trial and Appeal Board. Sec. 6. Elimination of fee diversion and full funding of the United States pat- ent and trademark office. Sec. 7. Patentability of scientific discoveries and software inventions. Sec. 8. Limitations on prior art. Sec. 9. Restoring patents as a property right. Sec. 10. Ending automatic publication of patent applications. Sec. 11. Presumption of validity; defenses. Sec. 12. Injunction. Sec. 13. Best mode requirement. SEC. 2. FINDINGS. 3 The Congress finds the following: 4 (1) The Congress created a patent system to 5 ‘‘promote the Progress of Science and useful Arts, 6 by securing for limited Times to Authors and Inven- 7 tors the exclusive Right to their respective Writings 8 and Discoveries,’’ as provided for in the Constitution 9 of the United States. 10 (2) The Leahy-Smith America Invents Act 11 (Public Law 112–29) enacted on September 16, 12 2011, and several decisions of the Supreme Court 13 have harmed the progress of Science and the useful 14 Arts by eroding the strength and value of the patent 15 system. 16 (3) The United States Government exists to 17 protect life, liberty, and property, which includes in- 18 tellectual property. 19 VerDate Sep 11 2014 00:32 Jul 21, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H7366.IH H7366 dlhill on DSK120RN23PROD with BILLS 3 •HR 7366 IH (4) A United States patent secures a private 1 property right to an inventor. 2 (5) This Act restores the patent system as envi- 3 sioned by the Constitution of the United States. 4 SEC. 3. RESTORING THE RIGHT OF THE FIRST INVENTOR 5 TO SECURE A PATENT. 6 (a) REPEAL OF FIRST-TO-FILE SYSTEM UNDER THE 7 AMERICA INVENTS ACT.—Section 3 of the Leahy-Smith 8 America Invents Act (Public Law 112–29), including each 9 amendment made by such section, is repealed and any 10 amendment made by such section to any provision shall 11 be effective as if the provision had not been amended by 12 such section. 13 (b) FIRST-TO-INVENT.—Notwithstanding any other 14 provision under title 35, United States Code, a person 15 shall be entitled to a patent where the inventor is first 16 to conceive of the invention and diligently reduces the in- 17 vention to practice. 18 (c) ONE-YEAR GRACE PERIOD.—Notwithstanding 19 any other provision under title 35, United States Code, 20 a person shall be entitled to a one-year grace period before 21 filing an application for a patent, as the grace period ex- 22 isted before the date of the enactment of the Leahy-Smith 23 America Invents Act under section 102 of title 35, United 24 States Code, and with the same meaning of the terms ‘‘in 25 VerDate Sep 11 2014 00:32 Jul 21, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H7366.IH H7366 dlhill on DSK120RN23PROD with BILLS 4 •HR 7366 IH public use’’ and ‘‘on sale in this country’’ as interpreted 1 before the enactment of the Leahy-Smith America Invents 2 Act. 3 (d) SENSE OF CONGRESS.—It is the sense of Con- 4 gress that— 5 (1) reverting the United States patent system 6 from a ‘‘first-to-file’’ system back to ‘‘first-to-in- 7 vent’’ system will promote the progress of science 8 and the useful arts by securing for limited times to 9 inventors the exclusive rights to their discoveries and 10 incentivize innovation and protect inventors’ rights; 11 (2) restoring the one-year grace period before 12 the first and true inventor must file a patent appli- 13 cation on an invention will promote the progress of 14 science and useful arts by enabling inventors once 15 again to disclose inventions in order to attract in- 16 vestment, complete research and development on the 17 invention, test, improve, and perfect the invention so 18 as to improve the invention and the quality of the 19 patent application; and 20 (3) the repeal of section 3, and the amendments 21 made by section 3, of the Leahy-Smith America In- 22 vents Act, restore sections 100, 102, 103, 135, and 23 291 of title 35, United States Code, to the way such 24 VerDate Sep 11 2014 00:32 Jul 21, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H7366.IH H7366 dlhill on DSK120RN23PROD with BILLS 5 •HR 7366 IH sections read on the day before the date of the en- 1 actment of such Act. 2 SEC. 4. ABOLISHING INTER PARTES AND POST-GRANT RE- 3 VIEW. 4 (a) REPEAL OF INTER PARTES AND POST-GRANT 5 REVIEW.—Section 6 of the Leahy-Smith America Invents 6 Act (Public Law 112–29), including each amendment 7 made by such section, is repealed and any amendment 8 made by such section to any provision shall be effective 9 as if the provision had not been amended by such section. 10 (b) REPEAL OF CODIFIED TITLES.—Chapters 31 and 11 32 of title 35, United States Code, are repealed. 12 (c) SENSE OF CONGRESS.—It is the sense of Con- 13 gress that— 14 (1) inter partes review and post-grant review 15 proceedings introduced by the Leahy-Smith America 16 Invents Act have harmed the progress of science and 17 the useful arts by subjecting inventors to serial chal- 18 lenges to patents; 19 (2) inter partes review and post-grant review 20 proceedings invalidate patents at an unreasonably 21 high rate; 22 (3) patent rights should be protected from un- 23 fair adjudication at the Patent and Trademark Of- 24 VerDate Sep 11 2014 01:44 Jul 21, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H7366.IH H7366 dlhill on DSK120RN23PROD with BILLS 6 •HR 7366 IH fice and duly issued patents should be adjudicated in 1 a judicial proceeding; 2 (4) repealing section 6 of the Leahy-Smith 3 America Invents Act abolishes inter partes review, 4 post-grant review, and the previously available inter 5 partes reexamination proceedings; and 6 (5) it is the intent of Congress to preserve ex 7 parte reexamination proceedings under chapter 30 of 8 title 35, United States Code. 9 SEC. 5. ABOLISHING THE PATENT TRIAL AND APPEAL 10 BOARD. 11 (a) REPEAL OF PATENT TRIAL AND APPEAL 12 BOARD.—Section 7 of the Leahy-Smith America Invents 13 Act (Public Law 112–29) is repealed, including each 14 amendment made by such section, and any amendment 15 made by such section to any provision shall be effective 16 as if the provision had not been amended by such section. 17 (b) BOARD OF PATENT APPEALS AND INTER- 18 FERENCES.— 19 (1) AMENDMENT.—Section 6 of title 35, United 20 States Code, is amended to read as follows: 21 ‘‘§ 6. Board of Patent Appeals and Interferences 22 ‘‘(a) ESTABLISHMENT AND COMPOSITION.—There 23 shall be in the Patent and Trademark Office a Board of 24 Patent Appeals and Interferences. The Director, the Dep- 25 VerDate Sep 11 2014 00:32 Jul 21, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H7366.IH H7366 dlhill on DSK120RN23PROD with BILLS 7 •HR 7366 IH uty Director, the Commissioner for Patents, the Commis- 1 sioner for Trademarks, and the administrative patent 2 judges shall constitute the Board. The administrative pat- 3 ent judges shall be persons of competent legal knowledge 4 and scientific ability who are appointed by the Secretary 5 of Commerce, in consultation with the Director. 6 ‘‘(b) DUTIES.—The Board of Patent Appeals and 7 Interferences shall, on written appeal of an applicant, re- 8 view adverse decisions of examiners upon applications for 9 patents and shall determine priority and patentability of 10 invention in interferences declared under section 135(a). 11 Each appeal and interference shall be heard by at least 12 three members of the Board, who shall be designated by 13 the Director. Only the Board of Patent Appeals and Inter- 14 ferences may grant rehearings. The Board shall not invali- 15 date an issued patent except in an ex parte reexamination 16 under chapter 30. 17 ‘‘(c) AUTHORITY OF THE SECRETARY.—The Sec- 18 retary of Commerce may, in the Secretary’s discretion, 19 deem the appointment of an administrative patent judge 20 who, before the date of the enactment of this subsection, 21 held office pursuant to an appointment by the Director, 22 to take effect on the date on which the Director initially 23 appointed the administrative patent judge. 24 VerDate Sep 11 2014 00:32 Jul 21, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H7366.IH H7366 dlhill on DSK120RN23PROD with BILLS 8 •HR 7366 IH ‘‘(d) DEFENSE TO CHALLENGE OF APPOINTMENT.— 1 It shall be a defense to a challenge to the appointment 2 of an administrative patent judge on the basis of the 3 judge’s having been originally appointed by the Director 4 that the administrative patent judge so appointed was act- 5 ing as a de facto officer.’’. 6 (2) TECHNICAL AND CONFORMING AMEND- 7 MENT.—The table of sections for chapter 1 of title 8 35, United States Code, is amended by striking the 9 item relating to section 6 and inserting the following 10 new item: 11 ‘‘6. Board of patent appeals and interferences.’’. (c) APPEAL TO THE BOARD OF PATENT APPEALS 12 AND INTERFERENCES.— 13 (1) AMENDMENT.—Section 134 of title 35, 14 United States Code, as reinstated by section 3(a) of 15 this Act, is amended by striking subsection (c). 16 (2) TECHNICAL AND CONFORMING AMEND- 17 MENT.—The table of sections for chapter 12 of title 18 35, United States Code, is amended by striking the 19 item relating to section 134 and inserting the fol- 20 lowing new item: 21 ‘‘134. Appeal to the Board of Patent Appeals and Interferences.’’. (d) APPEAL TO THE COURT OF APPEALS FOR THE 22 FEDERAL CIRCUIT.—Section 141 of title 35, United 23 States Code, is amended to read as follows: 24 VerDate Sep 11 2014 00:32 Jul 21, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H7366.IH H7366 dlhill on DSK120RN23PROD with BILLS 9 •HR 7366 IH ‘‘§ 141. Appeal to the Court of Appeals for the Federal 1 Circuit 2 ‘‘(a) EXAMINATIONS.—An applicant dissatisfied with 3 the decision in an appeal to the Board of Patent Appeals 4 and Interferences under section 134 may appeal the deci- 5 sion directly to the United States Court of Appeals for 6 the Federal Circuit, or may seek review de novo in any 7 district court of the United States of competent jurisdic- 8 tion. 9 ‘‘(b) REEXAMINATIONS.—A patent owner who is, in 10 a reexamination proceeding, dissatisfied with the final de- 11 cision in an appeal to the Board of Patent Appeals and 12 Interferences under section 134 may appeal the decision 13 directly to the United States Court of Appeals for the Fed- 14 eral Circuit, or may seek review de novo in a district court 15 of the United States of competent jurisdiction. 16 ‘‘(c) INTERFERENCE.—A party to an interference 17 dissatisfied with the decision of the Board of Patent Ap- 18 peals and Interferences on the interference may appeal the 19 decision to the United States Court of Appeals for the 20 Federal Circuit, but such appeal shall be dismissed if any 21 adverse party to such interference, within twenty days 22 after the appellant has filed notice of appeal in accordance 23 with section 142, files notice with the Director that the 24 party elects to have all further proceedings conducted as 25 provided in section 146. If the appellant does not, within 26 VerDate Sep 11 2014 00:32 Jul 21, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H7366.IH H7366 dlhill on DSK120RN23PROD with BILLS 10 •HR 7366 IH thirty days after filing of such notice by the adverse party, 1 file a civil action under section 146, the decision appealed 2 from shall govern the further proceedings in the case.’’. 3 (e) SENSE OF CONGRESS.—It is the sense of Con- 4 gress that— 5 (1) the Patent Trial and Appeal Board shall be 6 replaced with the former Board of Patent Appeals 7 and Interferences; 8 (2) with the abolishment of inter partes review 9 and post-grant review proceedings, the Patent Trial 10 and Appeal Board is no longer needed to conduct 11 these duties; 12 (3) unless otherwise in the context of an ex 13 parte reexamination under chapter 30 of title 35, 14 United States Code, the Board of Patent Appeals 15 and Interferences will not be used to invalidate an 16 already issued patent; 17 (4) the changes described in paragraphs (1) 18 through (3) will protect the rights of patent owners 19 who have been granted a patent and ensure a fair, 20 fully adjudicated proceeding to invalidate an issued 21 patent; 22 (5) the amendment to section 6 of title 35, 23 United States Code, reflects Congress’s intent to re- 24 VerDate Sep 11 2014 00:32 Jul 21, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H7366.IH H7366 dlhill on DSK120RN23PROD with BILLS 11 •HR 7366 IH quire a judicial proceeding to invalidate an issued 1 patent; and 2 (6) the amendments to section 134 of title 35, 3 United States Code, and section 141 of title 35, 4 United States Code, are intended to restore each re- 5 spective section to its prior state, but delete any ref- 6 erence to inter partes reexamination, which is no 7 longer available. 8 SEC. 6. ELIMINATION OF FEE DIVERSION AND FULL FUND- 9 ING OF THE UNITED STATES PATENT AND 10 TRADEMARK OFFICE. 11 (a) PATENT AND TRADEMARK OFFICE FUNDING.— 12 Section 42 of title 35, United States Code, is amended— 13 (1) in subsection (a), by striking ‘‘(a) All fees’’ 14 and inserting ‘‘(a) IN GENERAL.—Fees’’; 15 (2) in subsection (b)— 16 (A) by striking ‘‘(b) All fees’’ and inserting 17 ‘‘(b) CREDIT OF FEES.—Fees’’; and 18 (B) by striki [Text truncated for display. Full text available on Congress.gov.]