Collins: Strike expansion of Section 18 patent appeal process in AIA look-back bill
A Georgia congressman told Human Events he plans to file an amendment to the look-back bill to modify the 2011 America Invents Act, called the Innovation Act, that will prevent the expansion of the “Section 18” transitional appeal process that would have opened the door to patent trolls and well-heeled infringers.
There needs to be a balance between protecting intellectual property rights and protecting people from predator legal practices, said Rep. Douglas A. Collins (R.-Ga.), a member of the House Judiciary Committee and a chaplain in the Air Force Reserve.
“We are going to be making a move to strike that provision,”he said.
Collins said he supports the rest of the bill brought forward by Rep. Robert W. Goodlatte (R.-Va.), the chairman of the House Judiciary Committee, and by freezing Section 18, he hopes the rest of the bill can move forward.
“I think the chairman has done a good job looking at all the issues, especially with the litigious nature of the patents trolls,” he said.
In either case, the current bill at the House Judiciary Committee significantly changes Section 18 of the 2011 America Invents Act, he said. “It is taking it from a trial position to a permanent position.”
In the AIA, all patents are subject to challenge, or Post Grant Review, for nine months after the patent is awarded. This is a backstop for the new for the most dramatic change in American patent law when the AIA changed the United States from a first-to-invent to a first-to-file patent system.
Section 18 is the part of the AIA that created a special transitional appeal process for Wall Street firms accused of violating Covered Business Methods, which are unique procedures and techniques that became patentable in 1997. The financial services industry lobbied for and received this appeal process that begins after the expiration of the nine-month PGR window and remains open until its 2020 sunset Congress gave the process.
As Congress took up this look-back bill to fix bugs in the AIA, Google has teamed up with patent trolls to include in the look-back bill language that broadens the scope of the Section 18 process to include any product, service or enterprise that uses data processing and also creates a safe harbor for patent infringers to continue to exploit someone else’s intellectual property during the appeal process without penalty. The bill would also eliminate the sunset provision, thus extending the patent’s vulnerability until it passes into the public domain.
In effect, when the patent owner catches an infringer, the infringer would be able to challenge the validity of the holder’s patent through the transitional appeal process. This weakening of intellectual property rights would severely lower the economic value of the patent and put the holder at risk of losing the patent completely.
At the Patent and Trademark Office, administrative law judges have themselves broadened the scope of the Section 18 process, so the new Section 18 language is a case of Congress playing catch up with judicial innovation.
Collins said, “We call it expansion. Other people, like the chairman, might call it the codification of a tort case. But, don’t think it is appropriate right now.”
Collins said Congress should leave Section 18 alone, in order to give more time to watch how the process works over a longer period of time, especially since the expansive ruling by PTO administrative law judges is still being appealed in the federal courts. “Let’s let it work the way it was intended to work and we’ll see how it turns out.”
Everyone has heartburn over some part of the Innovation Act, he said. “But this is the one thing in particular it would be good to keep as is.”