Congress Now Pushing 'Bring Back The Patent Trolls' Bill

from the oh-come-on dept

Back in April we warned about a truly terrible plan by some in Congress to obliterate the last few years of the Supreme Court fixing our broken patent system, and flinging the doors wide open to patenting genes, medical diagnostics, and software (all of which the Supreme Court has mostly rejected as abusive and monopolizing nature). One had hoped that after having explained to them how disastrous such a bill would be, that its backers might think carefully in crafting the final bill. Instead, Senators Tom Tillis and Chris Coons, along with Reps. Hank Johnson and Steve Sivers instead decided to double down with a bill that would massively stifle innovation.

They claim it’s to “restore predictability and stability” in our patent system, but that’s laughable. It is to massively increase the universe of patent-eligibility to include a wide range of things that almost anyone who understands innovation would consider it insane to allow patents to restrict. It would literally obliterate the three key Supreme Court cases that rejected patents on genes, medical diagnostics, and most software, and open the door to patenting “laws of nature,” “abstract ideas” and “natural phenomenon.” Really. It specifically says that:

No implicit or other judicially created exceptions to subject matter eligibility, including ?abstract ideas,? ?laws of nature,? or ?natural phenomena,? shall be used to determine patent eligibility under section 101, and all cases establishing or interpreting those exceptions to eligibility are hereby abrogated.

It would also bring us back to a world in which the default is everything is patentable:

The provisions of section 101 shall be construed in favor of eligibility.

No one doing actual innovation would support this. The only people who could possibly support this are patent lawyers and patent trolls. It will reopen the floodgates of bad patents and patent trolling, flooding the courts with bogus lawsuits on broad and vague patents against actual innovators. It is a dangerous bill that Congress must reject. We lived through nearly two decades of patent trolls destroying innovation while Congress twiddled its thumbs and did almost nothing to stop it. The Supreme Court finally stepped in (again and again and again) to stop the nonsense — and now these elected officials want to bring us back to such a world?

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Comments on “Congress Now Pushing 'Bring Back The Patent Trolls' Bill”

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Mason Wheeler (profile) says:

Jurisdiction fight!

No implicit or other judicially created exceptions to subject matter eligibility, including “abstract ideas,” “laws of nature,” or “natural phenomena,” shall be used to determine patent eligibility under section 101, and all cases establishing or interpreting those exceptions to eligibility are hereby abrogated.

Congress says to Supreme Court, "you can’t do that." The appropriate response is for the Supreme Court to say to Congress, "oh yes we can" and strike down the law.

Gary (profile) says:

Re: Jurisdiction fight!

Do you think that is a process that could be completed in under ten years?
Better to not pass the damn thing and writeup some legislation that reduces patent protection rather than increasing it.
Fighting a law all the way to the Supreme Court is a lengthy and expensive prospect. In the meantime bad patents would continue to churn at an accelerated rate.

James Burkhardt (profile) says:

Re: Jurisdiction fight!

Which largely they wont do. CUrrent rulings on patents are based not in the constitutionality of patents, but based in the statute of patents. This law amends that statute. It is unlikely the Supreme court will suddenly find a constitutional definition of patents that overrules the new statute.

Vermont IP Lawyer (profile) says:

Re: Re: Jurisdiction fight!

Mr. Burkhardt is exactly right about this–the issue is interpretation of the statute and not about the constitution. Until Congress speaks up, SCOTUS has a good deal of flexibility in interpreting statutory provisions that, arguably, are ambiguous. Once Congress eliminates the ambiguity, SCOTUS has very little flexibility. For comparison, consider when Congress increased the term of copyright (per lobbying by Disney to protect Mickey Mouse) and a case was brought by very sophisticated plaintiffs arguing that was unconstitutional–those plaintiffs lost.

Anonymous Coward says:

Re: Re:

Today, U.S. Senators Thom Tillis (R-NC) and Chris Coons (D-DE), Chair and Ranking Member of the Senate Judiciary Subcommittee on Intellectual Property, and Representative Doug Collins (R-GA-9), Ranking Member of the House Judiciary Committee, Hank Johnson (D-GA-4), Chairman of the House Judiciary Subcommittee on Intellectual Property and the Courts, and Steve Stivers (R-OH-15) released a bipartisan, bicameral draft bill that would reform Section 101 of the Patent Act.

Anonymous Coward says:

Would this even get through a divided congress? I suppose there might be enough lobbying dollars to buy a majority in both chambers, but either chamber could put a poison-pill rider on it.

One scenario would be if they tie some of the legislation that’s stuck behind threats of presidential veto, like the infrastructure bill or additional hurricane aid to Puerto Rico and other affected locales.

Anonymous Coward says:

i thought the whole point of the supreme court is its the final court
of opinion in legal matters ,
if it says patents on natural laws are bad or illegal
congress cant just ignore it.
Or make laws that make patents based on natural laws legal . for instance companys could get patents on basic medical tests or software that looks at medical data for certain patterns .the result could be the cost of medical care and insurance could rise in the us because patent trolls
will be sueing hospitals .
Theres many basic software process,s that have never been patented
because they were used by all pc users years before software
patents were allowed .

Anonymous Coward says:

Re: Re:

So, you’d rather have the jury convened twice, once for determining the validity of the claims-in-suit (both with regard to 101/patentable-subject-matter and 102&103/novelty&nonobviousness) and the second time for asking if the defendant infringed the patent or not? Can the jury be convened multiple times within the course of a single trial proceeding?

Or would you rather have everything lumped into one set of jury instructions, raising the spectre of seemingly illogical jury verdicts akin to some of the messes we’ve seen in other contexts in the past? (Imagine the same jury sitting both invalidating the patent and ruling that the defendant infringed upon the patent…)

Never mind that you’re trying to pull an elephant out of something that’s not an elephant-sized hole here…if you wanted patent validity to be a jury decision, why not just have the bill come out and say so?

Anonymous Coward says:

Re: Re: Re:


101 has been deemed by courts as a question of law that is outside the province of juries, all the while ignoring that critical questions of fact must first be resolved. Hence, my mention of them deftly sidestepping juries altogether and why the proposed legislation may actually be helpful.

Hugo S Cunningham (profile) says:

House Republicans used to be good guys

In 2014, the Republican House sent a good patent-reform bill to the Democratic Senate. Judiciary Committee chairman Patrick Leahy expressed some interest, but further action was vetoed by Majority Leader Harry Reid. There were brief hopes for reform when Harry Reid lost the Senate in 2014, but Republican Senators quickly showed themselves just as worthless as Democratic Senators.

The three public-interest leaders in the Republican House, Darrell Issa, Bob Goodlatte, and Lamar Smith, announced retirement in 2018 (along with 40 other Republicans), unable or unwilling to adapt to the intellect-free environment of Trump Republicanism.

Anonymous Coward says:


I’m going to patent the following:
Presidential lie-fest (open mouth, lie follows)
Presidential Rage Tweeting
Presidential Funds Embezzlement
Presidential Corruption
Presidential Obstruction of Justice
Presidential Interference with investigations

and finally
Presidential Breathing

Then I can send cease and desist to someone for all of the above, or sue for hundreds of thousands of dollars for every breath they take.

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