This week, the Senate Judiciary Committee canceled its Executive Business Meeting. Two controversial bills—PERA and the PREVAIL Act—were on the agenda for the cancelled meeting. With lawmakers headed back to states until after the election in November, PERA and PREVAIL are stalled—for now. They should be put away permanently.
As readers of Patent Progress already know, PREVAIL would amend the patent validity challenge process at the PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA.. PREVAIL’s changes would make it significantly more difficult for members of the public to challenge invalid patents. While proponents of the bill claim it will make the PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. more effective, a chorus of those examining the bill have come to the opposite conclusion—that the PREVAIL Act would deny businesses much-needed access to the PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. review process, driving up the costs of district court litigation and thus the costs consumers pay, and potentially allowing a whole host of invalid patents to be enforced on businesses.
Meanwhile, the Patent Eligibility Restoration Act—also known as PERA—would broaden the scope of patent-eligible subject matter outlined in the Patent Act to include naturally-occurring phenomena, mathematical formulas, and other concepts previously considered too abstract or basic to permit any one company to obtain monopoly rights over them. By lowering the bar for patentability, PERA would empower patent trolls to pursue even more frivolous litigation against American businesses and consumers, in turn hampering innovation and slowing the economy.
This month, a wide range of stakeholders (including CCIA) representing everyone from manufacturers, to local retailers, to technology companies expressed strong opposition to the measures, as did multiple organizations that advocate for patients and affordable health care and prescription drugs. At least some of these concerns apparently broke through, as, at a Committee meeting on September 19th where the bills were first scheduled for consideration, Senator Sheldon Whitehouse (D-RI) noted that constituents of his “are unhappy about [these] measure[s].”
The Committee has punted on PERA and PREVAIL for now. But when Congress reconvenes following the election, it is incumbent upon Judiciary Committee members to heed the serious concerns raised about both proposals. Advancing PERA and the PREVAIL Act would be a significant step backward for the U.S. patent system, with the main beneficiaries being entities that make patents, not products, and the hedge funds and private equity companies who fund them.
