In late June, three Democratic senators (Chris Coons (D-DE), Dick Durbin (D-IL), and Mazie Hirono (D-HI)) and one Republican senator (Tom Cotton (R-AR)) introduced the “STRONGER Patents Act of 2017.” This bill appears to have been motivated by a recent report from the U.S. Chamber of Commerce that had been heavily critical of the U.S. patent system, ranking it tenth in the world, down from a rank of first in their previous report. The legislators have claimed, in a one-pager released by Senator Coons’s office, that the bill would “enact balanced reforms to restore the U.S. patent system to the world’s gold standard.”
The bill includes a number of significant revisions to the inter partes review (IPR) and post-grant review (PGR) procedures set forth by the America Invents Act, as well as several attempts to legislatively overturn Supreme Court decisions. Four of the most significant are as follows:
- First, the bill would significantly narrow the scope of who can institute an IPR or PGR and introduce greater estoppel rules. The proposed legislation states that “the Director shall not authorize an inter partes review to be instituted on a claim challenged in a petition if the Director has previously instituted an inter partes review or post-grant review with respect to that claim.’’ IPRs and PGRs would also only be able to be petitioned for by entities that have been sued for infringement or that have been threatened with such a suit. This would bring post-grant actions into greater conformity with the rules for filing a declaratory judgment in federal district court.