,i #aafth ,,congress #b;d ,session ,h4 ,r4 #gcff ,,in ,,the ,,house ,,of ,,representatives ,june #be1 #bjbj,mr4 ,massie 7for himself1 ,mr4 ,mc,clintock1 and ,mr4 ,gosar7 introduced the following bill2 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 discoveries1 and for other purposes4 #a4 ,short title2 table of contents 7a7 ,short title ,this ,act may be cited as the ,restoring ,america's ,leadership in ,innovation ,act of #bjbj4 7b7 ,table of contents ,the table of contents for this ,act is as follows3 ,sec4 #a4 ,short title2 table of contents4,sec4 #b4 ,findings4,sec4 #c4 ,restoring the right of the first inventor to secure a patent4,sec4 #d4 ,abolishing inter partes and post-grant review4,sec4 #e4 ,abolishing the ,patent ,trial and ,appeal ,board4,sec4 #f4 ,elimination of fee diversion and full funding of the ,united ,states patent and trademark office4,sec4 #g4 ,patentability of scientific discoveries and software inventions4,sec4 #h4 ,limitations on prior art4,sec4 #i4 ,restoring patents as a property right4,sec4 #aj4 ,ending automatic publication of patent applications4,sec4 #aa4 ,presumption of validity2 defenses4,sec4 #ab4 ,injunction4,sec4 #ac4 ,best mode requirement4 #b4 ,findings ,the ,congress finds the following3 7#a7 ,the ,congress created a patent system to promote the ,progress of ,science and useful ,arts1 by securing for limited ,times to ,authors and ,inventors the exclusive ,right to their respective ,writings and ,discoveries1 as provided for in the ,constitution of the ,united ,states4 7#b7 ,the ,leahy-,smith ,america ,invents ,act 7,public ,law #aab-bi7 enacted on ,september #af1 #bjaa1 and several decisions of the ,supreme ,court have harmed the progress of ,science and the useful ,arts by eroding the strength and value of the patent system4 7#c7 ,the ,united ,states ,government exists to protect life1 liberty1 and property1 which includes intellectual property4 7#d7 ,a ,united ,states patent secures a private property right to an inventor4 7#e7 ,this ,act restores the patent system as envisioned by the ,constitution of the ,united ,states4 #c4 ,restoring the right of the first inventor to secure a patent 7a7 ,repeal of first-to-,file system under the ,america ,invents ,act ,section #c of the ,leahy-,smith ,america ,invents ,act 7,public ,law #aab-bi71 including each amendment made by such section1 is repealed and any amendment made by such section to any provision shall be effective as if the provision had not been amended by such section4 7b7 ,first-to-,invent ,notwithstanding any other provision under title #ce1 ,united ,states ,code1 a person shall be entitled to a patent where the inventor is first to conceive of the invention and diligently reduces the invention to practice4 7c7 ,one-,year grace period ,notwithstanding any other provision under title #ce1 ,united ,states ,code1 a person shall be entitled to a one-year grace period before filing an application for a patent1 as the grace period existed before the date of the enactment of the ,leahy-,smith ,america ,invents ,act under section #ajb of title #ce1 ,united ,states ,code1 and with the same meaning of the terms in public use and on sale in this country as interpreted before the enactment of the ,leahy-,smith ,america ,invents ,act4 7d7 ,sense of congress ,it is the sense of ,congress that-- 7#a7 reverting the ,united ,states patent system from a first-to-file system back to first-to-invent system will promote the progress of science and the useful arts by securing for limited times to inventors the exclusive rights to their discoveries and incentivize innovation and protect inventors' rights2 7#b7 restoring the one-year grace period before the first and true inventor must file a patent application on an invention will promote the progress of science and useful arts by enabling inventors once again to disclose inventions in order to attract investment1 complete research and development on the invention1 test1 improve1 and perfect the invention so as to improve the invention and the quality of the patent application2 and 7#c7 the repeal of section #c1 and the amendments made by section #c1 of the ,leahy-,smith ,america ,invents ,act1 restore sections #ajj1 #ajb1 #ajc1 #ace1 and #bia of title #ce1 ,united ,states ,code1 to the way such sections read on the day before the date of the enactment of such ,act4 #d4 ,abolishing inter partes and post-grant review 7a7 ,repeal of inter partes and post-,grant review ,section #f of the ,leahy-,smith ,america ,invents ,act 7,public ,law #aab-bi71 including each amendment made by such section1 is repealed and any amendment made by such section to any provision shall be effective as if the provision had not been amended by such section4 7b7 ,repeal of codified titles ,chapters #ca and #cb of title #ce1 ,united ,states ,code1 are repealed4 7c7 ,sense of congress ,it is the sense of ,congress that-- 7#a7 inter partes review and post-grant review proceedings introduced by the ,leahy-,smith ,america ,invents ,act have harmed the progress of science and the useful arts by subjecting inventors to serial challenges to patents2 7#b7 inter partes review and post-grant review proceedings invalidate patents at an unreasonably high rate2 7#c7 patent rights should be protected from unfair adjudication at the ,patent and ,trademark ,office and duly issued patents should be adjudicated in a judicial proceeding2 7#d7 repealing section #f of the ,leahy-,smith ,america ,invents ,act abolishes inter partes review1 post-grant review1 and the previously available inter partes reexamination proceedings2 and 7#e7 it is the intent of ,congress to preserve ex parte reexamination proceedings under chapter #cj of title #ce1 ,united ,states ,code4 #e4 ,abolishing the ,patent ,trial and ,appeal ,board 7a7 ,repeal of patent trial and appeal board ,section #g of the ,leahy-,smith ,america ,invents ,act 7,public ,law #aab-bi7 is repealed1 including each amendment made by such section1 and any amendment made by such section to any provision shall be effective as if the provision had not been amended by such section4 7b7 ,board of patent appeals and interferences 7#a7 ,amendment ,section #f of title #ce1 ,united ,states ,code1 is amended to read as follows3 #f4 ,board of ,patent ,appeals and ,interferences 7a7 ,establishment and composition ,there shall be in the ,patent and ,trademark ,office a ,board of ,patent ,appeals and ,interferences4 ,the ,director1 the ,deputy ,director1 the ,commissioner for ,patents1 the ,commissioner for ,trademarks1 and the administrative patent judges shall constitute the ,board4 ,the administrative patent judges shall be persons of competent legal knowledge and scientific ability who are appointed by the ,secretary of ,commerce1 in consultation with the ,director4 7b7 ,duties ,the ,board of ,patent ,appeals and ,interferences shall1 on written appeal of an applicant1 review adverse decisions of examiners upon applications for patents and shall determine priority and patentability of invention in interferences declared under section #ace7;a74 ,each appeal and interference shall be heard by at least three members of the ,board1 who shall be designated by the ,director4 ,only the ,board of ,patent ,appeals and ,interferences may grant rehearings4 ,the ,board shall not invalidate an issued patent except in an ex parte reexamination under chapter #cj4 7c7 ,authority of the ,secretary ,the ,secretary of ,commerce may1 in the ,secretary's discretion1 deem the appointment of an administrative patent judge who1 before the date of the enactment of this subsection1 held office pursuant to an appointment by the ,director1 to take effect on the date on which the ,director initially appointed the administrative patent judge4 7d7 ,defense to challenge of appointment ,it shall be a defense to a challenge to the appointment of an administrative patent judge on the basis of the judge's having been originally appointed by the ,director that the administrative patent judge so appointed was acting as a de facto officer4 4 7#b7 ,technical and conforming amendment ,the table of sections for chapter #a of title #ce1 ,united ,states ,code1 is amended by striking the item relating to section #f and inserting the following new item3 #f4 ,board of patent appeals and interferences4 4 7c7 ,appeal to the ,board of ,patent ,appeals and ,interferences 7#a7 ,amendment ,section #acd of title #ce1 ,united ,states ,code1 as reinstated by section #c7;a7 of this ,act1 is amended by striking subsection 7c74 7#b7 ,technical and conforming amendment ,the table of sections for chapter #ab of title #ce1 ,united ,states ,code1 is amended by striking the item relating to section #acd and inserting the following new item3 #acd4 ,appeal to the ,board of ,patent ,appeals and ,interferences4 4 7d7 ,appeal to the ,court of ,appeals for the ,federal ,circuit ,section #ada of title #ce1 ,united ,states ,code1 is amended to read as follows3 #ada4 ,appeal to the ,court of ,appeals for the ,federal ,circuit 7a7 ,examinations ,an applicant dissatisfied with the decision in an appeal to the ,board of ,patent ,appeals and ,interferences under section #acd may appeal the decision directly to the ,united ,states ,court of ,appeals for the ,federal ,circuit1 or may seek review de novo in any district court of the ,united ,states of competent jurisdiction4 7b7 ,reexaminations ,a patent owner who is1 in a reexamination proceeding1 dissatisfied with the final decision in an appeal to the ,board of ,patent ,appeals and ,interferences under section #acd may appeal the decision directly to the ,united ,states ,court of ,appeals for the ,federal ,circuit1 or may seek review de novo in a district court of the ,united ,states of competent jurisdiction4 7c7 ,interference ,a party to an interference dissatisfied with the decision of the ,board of ,patent ,appeals and ,interferences on the interference may appeal the decision to the ,united ,states ,court of ,appeals for the ,federal ,circuit1 but such appeal shall be dismissed if any adverse party to such interference1 within twenty days after the appellant has filed notice of appeal in accordance with section #adb1 files notice with the ,director that the party elects to have all further proceedings conducted as provided in section #adf4 ,if the appellant does not1 within thirty days after filing of such notice by the adverse party1 file a civil action under section #adf1 the decision appealed from shall govern the further proceedings in the case4 4 7e7 ,sense of ,congress ,it is the sense of ,congress that-- 7#a7 the ,patent ,trial and ,appeal ,board shall be replaced with the former ,board of ,patent ,appeals and ,interferences2 7#b7 with the abolishment of inter partes review and post-grant review proceedings1 the ,patent ,trial and ,appeal ,board is no longer needed to conduct these duties2 7#c7 unless otherwise in the context of an ex parte reexamination under chapter #cj of title #ce1 ,united ,states ,code1 the ,board of ,patent ,appeals and ,interferences will not be used to invalidate an already issued patent2 7#d7 the changes described in paragraphs 7#a7 through 7#c7 will protect the rights of patent owners who have been granted a patent and ensure a fair1 fully adjudicated proceeding to invalidate an issued patent2 7#e7 the amendment to section #f of title #ce1 ,united ,states ,code1 reflects ,congress's intent to require a judicial proceeding to invalidate an issued patent2 and 7#f7 the amendments to section #acd of title #ce1 ,united ,states ,code1 and section #ada of title #ce1 ,united ,states ,code1 are intended to restore each respective section to its prior state1 but delete any reference to inter partes reexamination1 which is no longer available4 #f4 ,elimination of fee diversion and full funding of the ,united ,states ,patent and ,trademark ,office 7a7 ,patent and ,trademark ,office funding ,section #db of title #ce1 ,united ,states ,code1 is amended-- 7#a7 in subsection 7a71 by striking 7a7 ,all fees and inserting 7a7 ,in general4--,fees2 7#b7 in subsection 7b7-- 7,a7 by striking 7b7 ,all fees and inserting 7b7 ,credit of fees4--,fees2 and 7,b7 by striking ,patent and ,trademark ,office ,appropriation ,account and inserting ,united ,states ,patent and ,trademark ,office ,innovation ,promotion ,fund2 7#c7 in subsection 7c7-- 7,a7 by striking 7#a7 ,to the extent and all that follows through fees and inserting 7c7 ,use of fees4--7#a7 ,fees2 7,b7 in paragraph 7#a71 by striking shall be collected by and shall1 subject to paragraph 7#c71 be available to the ,director and inserting shall be collected by the ,director and shall be available to the ,director until expended2 7,c7 by striking paragraph 7#b72 and 7,d7 by redesignating paragraph 7#c7 as paragraph 7#b72 7#d7 by redesignating subsections 7d7 and 7e7 as subsections 7e7 and 7f71 respectively2 7#e7 by inserting after subsection 7c7 the following3 7d7 ,revolving fund 7#a7 ,definitions ,in this subsection3 7,a7 ,fund ,the term ,fund means the ,united ,states ,patent and ,trademark ,office ,innovation ,promotion ,fund established under paragraph 7#b74 7,b7 ,trademark ,act of #aidf ,the term ,trademark ,act of #aidf means the ,act entitled ,an ,act to provide for the registration and protection of trademarks used in commerce1 to carry out the provisions of certain international conventions1 and for other purposes1 approved ,july #e1 #aidf 7#ae ,u4,s4,c4 #ajea et seq47 7commonly referred to as the ,trademark ,act of #aidf or the ,lanham ,act74 7#b7 ,establishment ,there is established in the ,treasury a revolving fund to be known as the ,united ,states ,patent and ,trademark ,office ,innovation ,promotion ,fund4 7#c7 ,derivation of resources ,there shall be deposited into the ,fund any fees collected under-- 7,a7 this title2 or 7,b7 the ,trademark ,act of #aidf4 7#d7 ,expenses ,amounts deposited into the ,fund under paragraph 7#c7 shall be available1 without fiscal year limitation1 to cover-- 7,a7 all expenses to the extent consistent with the limitation on the use of fees set forth in subsection 7c71 including all administrative and operating expenses1 determined in the discretion of the ,director to be ordinary and reasonable1 incurred by the ,director for the continued operation of all services1 programs1 activities1 and duties of the ,office relating to patents and trademarks1 as such services1 programs1 activities1 and duties are described under-- 7i7 this title2 and 7ii7 the ,trademark ,act of #aidf2 and 7,b7 all expenses incurred pursuant to any obligation1 representation1 or other commitment of the ,office4 2 7#f7 in subsection 7e71 as so redesignated1 by striking ,the ,director and inserting ,refunds4-- ,the ,director2 and 7#g7 in subsection 7f71 as so redesignated1 by striking ,the ,secretary and inserting ,report4-- ,the ,secretary4 7b7 ,effective date2 transfer from and termination of obsolete funds 7#a7 ,effective date ,the amendments made by subsection 7a7 shall take effect on the first day of the first fiscal year that begins on or after the date of the enactment of this ,act4 7#b7 ,remaining balances ,there shall be deposited in the ,fund1 on the effective date described in paragraph 7#a71 any available unobligated balances remaining in the ,patent and ,trademark ,office ,appropriation ,account1 and in the ,patent and ,trademark ,fee ,reserve ,fund established under section #db7;c77#b7 of title #ce1 ,united ,states ,code1 as in effect on the day before the effective date4 7#c7 ,termination of reserve fund ,upon the payment of all obligated amounts in the ,patent and ,trademark ,fee ,reserve ,fund under paragraph 7#b71 the ,patent and ,trademark ,fee ,reserve ,fund shall be terminated4 #g4 ,patentability of scientific discoveries and software inventions 7a7 ,amendment ,section #aja of title #ce1 ,united ,states ,code1 is amended to read as follows3 #aja4 ,inventions patentable 7a7 ,in general ,whoever invents or discovers any new and useful process1 machine1 manufacture1 or composition of matter1 or any new and useful improvement thereof1 may obtain a patent therefor1 subject to the conditions and requirements of this title4 7b7 ,exception ,a claimed invention is ineligible patent subject matter under subsection 7a7 if the claimed invention as a whole1 as understood by a person having ordinary skill in the art1 exists in nature independently of and prior to any human activity1 or exists solely in the human mind4 7c7 ,eligibility standard ,the eligibility of a claimed invention under subsections 7a7 and 7b7 shall be determined without regard as to the requirements or conditions of sections #ajb1 #ajc1 and #aab of this title1 or the claimed invention's inventive concept4 4 7b7 ,sense of ,congress ,it is the sense of ,congress that-- 7#a7 the ,supreme ,court's recent jurisprudence concerning subject matter patentability has harmed the progress of science and the useful arts2 7#b7 the ,united ,states patent system must protect and encourage research and development in such scientific disciplines as would promote the progress of science and the useful arts by securing for limited times to inventors the exclusive rights to their discoveries and provide scientists in the life sciences1 computer sciences1 and other disciplines1 with certainty that their discoveries and inventions are entitled to patent protection2 and 7#c7 this amendment effectively abrogates ,alice ,corp4 v4 ,,cls ,bank ,international1 #acd ,s4 ,ct4 #bcdg 7#bjad7 and its predecessors to ensure that life sciences discoveries1 computer software1 and similar inventions and discoveries are patentable1 and that those patents are enforceable4 #h4 ,limitations on prior art ,section #ajb of title #ce1 ,united ,states ,code1 is amended to read as follows3 #ajb4 ,conditions for patentability2 novelty 7a7 ,in general ,a person shall be entitled to a patent unless-- 7#a7 the invention was known or used by others in this country1 or patented or described in a printed publication in this or a foreign country1 before the invention thereof by the applicant for patent2 7#b7 the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country1 more than one year prior to the date of the application for patent in the ,united ,states2 7#c7 he has abandoned the invention2 7#d7 the invention was first patented or caused to be patented1 or was the subject of an inventor's certificate1 by the applicant or his legal representatives or assigns in a foreign country prior to the date of the application for patent in this country on an application for patent or inventor's certificate filed more than twelve months before the filing of the application in the ,united ,states2 7#e7 the invention was described in 7#a7 an application for patent1 published under section #abb7;b71 by another filed in the ,united ,states before the invention by the applicant for patent or 7#b7 a patent granted on an application for patent by another filed in the ,united ,states before the invention by the applicant for patent1 except that an international application filed under the treaty defined in section #cea7;a7 shall have the effects for the purposes of this subsection of an application filed in the ,united ,states only if the international application designated the ,united ,states and was published under ,article #ba7b7 of such treaty in the ,english language2 7#f7 he did not himself invent the subject matter sought to be patented2 or 7#g7 7,a7 during the course of an interference conducted under section #ace or section #bia1 another inventor involved therein establishes1 to the extent permitted in section #ajd1 that before such person's invention thereof the invention was made by such other inventor and not abandoned1 suppressed1 or concealed2 or 7,b7 before such person's invention thereof1 the invention was made in this country by another inventor who had not abandoned1 suppressed1 or concealed it4 ,in determining priority of invention under this subsection1 there shall be considered not only the respective dates of conception and reduction to practice of the invention1 but also the reasonable diligence of one who was first to conceive and last to reduce to practice1 from a time prior to conception by the other4 7b7 ,disclosures in patent applications and patents ,a disclosure shall not be prior art to a claimed invention under this section if before the issuance of a patent-- 7#a7 the information disclosed was obtained directly or indirectly from the inventor or a joint inventor2 7#b7 the information disclosed to the ,office or another party during the one-year period prior to the date of the application for patent had1 before a patent application for the information was effectively filed1 been publicly disclosed by the inventor or a joint inventor2 or 7#c7 the information disclosed and the claimed invention1 not later than the effective filing date of the claimed invention1 were owned by the same person or subject to an obligation of assignment to the same person4 4 #i4 ,restoring patents as a property right 7a7 ,private property patent right 7#a7 ,amendment ,chapter #aj of title #ce1 ,united ,states ,code1 is amended by adding at the end the following new section3 #ajf4 ,private property patent right ,a patent right is a private property right secured to an inventor upon issuance of the patent that shall only be revoked by a court ruling in a judicial proceeding1 unless the patent owner consents to an administrative or other procedure4 4 7#b7 ,technical and conforming amendment ,the table of sections for chapter #aj of title #ce1 ,united ,states ,code1 is amended by adding at the end the following new item3 #ajf4 ,private property patent right4 4 7b7 ,ownership2 assignment ,section #bfa of title #ce1 ,united ,states ,code1 is amended-- 7#a7 in the first sentence1 by striking patents shall have the attributes of personal property and inserting the following3 patents shall be recognized as private property rights2 and 7#b7 by inserting after the second sentence the following3 ,as private property rights1 applications for patents1 patents1 and interests therein shall be freely transferrable1 in whole or in part1 including conveyance by assignment or license4 ,any successors1 heirs1 assigns1 or licensees of a patent owner1 who receive a lesser interest in a patent1 shall be subject to any and all restrictions of their interest in the patent1 provided that the successors1 heirs1 assigns1 or licensees have actual or constructive notice of such restrictions4 4 7c7 ,sense of ,congress ,it is the sense of ,congress that-- 7#a7 recent jurisprudence of the ,united ,states ,supreme ,court1 including ,impression ,products ,inc4 v4 ,lexmark ,international1 ,inc41 have harmed the progress of science and the useful arts by limiting the ability of patent owners to exclude unlicensed customers from their supply chains2 and 7#b7 meaningful patent rights must permit patent owners to freely assign their rights in whole1 or in part1 and to ensure that successors1 heirs1 or assigns of a patent owner1 or their assigns1 are duly bound by restrictions or exclusions set by patent owners on the use of their property4 #aj4 ,ending automatic publication of patent applications 7a7 ,amendment ,section #abb7;b7 of title #ce1 ,united ,states ,code1 is amended to read as follows3 7b7 ,publication 7#a7 ,in general ,each application for a patent shall be published1 in accordance with procedures determined by the ,director1 only upon the request of the patent applicant4 7#b7 ,information released once a patent issues ,no information concerning a patent application shall be available to the public unless and until a patent issues4 4 7b7 ,sense of ,congress ,it is the sense of ,congress that-- 7#a7 automatic publication of patent applications after #ah months has harmed the progress of science and the useful arts by creating prior art by operation of law that prevents a patent owner from applying for a patent on the same invention if a patent does not issue2 and 7#b7 automatic publication of patent applications encourages early disclosure of claimed inventions and subjects innovative inventions and discoveries reduced to practice in the ,united ,states to theft or appropriation by foreign competitors4 #aa4 ,presumption of validity2 defenses 7a7 ,validity of a patent in adjudicatory proceedings ,section #bhb7;a7 of title #ce1 ,united ,states ,code1 is amended to read as follows3 7a7 ,in general 7#a7 ,presumption of validity for a patent ,in any judicial or administrative proceeding conducted in any court or ,federal agency 7as defined in section #bja7 or of any ,state1 a patent issued under this title shall be presumed valid4 7#b7 ,presumption of validity for claims of a patent ,in any proceeding described under paragraph 7#a7-- 7,a7 each claim of a patent 7whether in independent1 dependent1 or multiple dependent form7 shall be presumed valid independently of the validity of other claims2 and 7,b7 dependent or multiple dependent claims shall be presumed valid even though dependent upon an invalid claim4 7#c7 ,burden of establishing invalidity ,in any proceeding described under paragraph 7#a7 in which the validity of a patent is at issue1 the burden of establishing invalidity of a patent or any claim thereof rests on the party asserting the invalidity by clear and convincing evidence4 4 7b7 ,tolling patent term during judicial challenge ,section #bhb of title #ce1 ,united ,states ,code1 is amended by adding at the end the following3 7d7 ,tolling of patent term during validity challenge ,in an action involving a patent where the validity of the patent has been challenged1 the patent term shall be tolled from the time the validity of the patent is challenged to the time of resolution of the validity issue by the court4 ,the patent term shall resume once the validity challenge is resolved4 ,the court may award damages to the patent owner in a case in which another party brought a validity claim against the patent in bad faith4 4 #ab4 ,injunction ,section #bhc of title #ce1 ,united ,states ,code1 is amended-- 7#a7 by striking ,the and inserting the following3 7a7 ,in general ,the 2 and 7#b7 by adding at the end the following new subsection3 7b7 ,permanent injunction 7#a7 ,in general ,upon a finding of infringement of a patent1 the court shall presume that further infringement of the patent would cause the patent owner irreparable harm4 ,this presumption may be overcome only by a showing of clear and convincing evidence by the infringing party that the patent owner would not be irreparably harmed by further infringement of the patent4 ,the patent owner is not required to make or sell a product covered by the patent to show irreparable harm4 7#b7 ,patent owner defined ,in this subsection1 a patent owner means the owner of the patent or an exclusive licensee of the patent4 4 #ac4 ,best mode requirement ,section #ae of the ,leahy-,smith ,america ,invents ,act 7,public ,law #aab-bi71 including each amendment made by such section1 is repealed and any provision amended by such section shall be amended to read as in effect on the day before the date of the enactment of such ,act4