Op-ed: Rep. Bob Goodlatte: Stop the Senate’s innovation setback
This week, the Senate Judiciary Committee is considering whether to advance two pieces of patent-related legislation. Both will significantly alter the U.S. intellectual property landscape. As standalone proposals, the Patent Eligibility Restoration Act (PERA) and the Promoting and Respecting Economically Vital American Innovation Leadership (PREVAIL) Act are deeply flawed policies. In combination, they are an even more destructive cocktail that will slow innovation, increase confusion and waste, and drive up costs for businesses and consumers.
U.S. patents have always been reserved for “new and useful arts,” or as the Patent Act was later revised, for “new and useful process.” In other words, patents are limited to technological advances. Multiple unanimous Supreme Court decisions have affirmed guardrails on what is patentable. Subject matter like general business methods, economic practices, and natural laws are not patent-eligible. An “inventor” can’t get a patent on the mere idea of running a certain type of business, or an advertising concept. Nor can an “inventor” patent laws of nature and science; those belong to us all.
PERA eliminates safeguards on what is patentable and will set off a race to the bottom on patent quality. Vague concepts, general processes, and even natural occurrences like human genes will suddenly become patentable.
Turning patent eligibility into a free for all doesn’t protect inventors’ intellectual property or encourage innovation. It does, however, incentivize manipulating the patent system to make more money. Well-resourced patent owners, like pharmaceutical companies, will be further empowered to create thickets of vague patents, blocking competition and allowing them to keep prices artificially high. Broad patents are also golden tickets for patent owners informally called “patent trolls,” which don’t make or sell any products of their own. Patent trolls will use low-quality patents enabled by PERA in lawsuits against small businesses, claiming monopolies on the idea of running certain types of enterprises, and to target cutting-edge American industries, asserting that their broad patents cover specific technological breakthroughs.
With everything from artistic expressions to isolated human genes becoming patentable, the opportunities for abuse and profiteering will be rampant. In even worse news for American innovators and consumers, the PREVAIL Act will multiply the damage by gutting one of the best checks we have on patent system abuse.
I was in the bipartisan congressional majority that passed the America Invents Act (AIA) in 2011. Through the AIA, Congress created a patent validity review process at the U.S. Patent and Trademark Office (USPTO), which allows any member of the public to petition judges serving on the Patent Trial and Appeal Board (PTAB) to review a patent’s validity.
When PTAB judges find there is a reasonable likelihood a challenged patent is invalid, they take up review and can invalidate patents that the USPTO issued in error. PTAB is a far more efficient and less expensive litigation alternative, making it one of the best ways to guard against meritless patent lawsuits. PTAB review also spurs innovation by clearing invalid patents and the unearned monopolies they create, from key industries and technology areas. By ridding the economy of bad patents, the PTAB increases competition and brings down costs.
The PREVAIL Act proposes a series of drastic changes to the PTAB, all of which will make it more difficult to challenge invalid patents. From placing new restrictions on who can request review, to blocking the admission of certain types of evidence, the PREVAIL Act’s outcome will be more invalid patents avoiding review and being weaponized in litigation against America’s small businesses and manufacturers.
The American public has already overwhelmingly opposed the legislation, and Congress has repeatedly rejected it under different names. Most recently, the PREVAIL Act’s core “reforms” were included in a 2023 USPTO rulemaking proposal. The agency’s public comment period on the rules received a record volume of public input, with more than 95 percent of comments opposing the changes.
The public’s concern was justified. A partial set of proposals included in both the USPTO rulemaking and the PREVAIL Act will decrease U.S. business activity by more than $482 million in gross product and increase costs to the federal government by hundreds of millions of dollars over the next decade. Even longstanding opponents of PTAB review, groups like U.S. Inventor, “strongly opposes” the PREVAIL Act as written.
PERA and the PREVAIL Act are proof that two wrongs don’t make a right. PERA will clear the way for more bad patents and the PREVAIL Act will make it more difficult to challenge bad patents’ validity effectively. Instead of protecting intellectual property rights and promoting innovation, PERA and PREVAIL are a recipe for greater abuse, the distortion of patent rights, and higher costs for American families. The Senate must reject both proposals.
Rep. Bob Goodlatte represented Virginia’s 6th District in the U.S. House of Representatives from 1993 to 2019, and was chairman of the House Judiciary Committee.
