A bipartisan House bill entitled “Restoring America’s Leadership in Innovation Act of 2018” has been introduced to revert the U.S. patent system to “first-to-invent” rather than “first-to-file.” H.R. 6264 also seeks to rid many post-grant proceedings, including inter partes review (IPR), post-grant review (PGR), and inter partes reexamination. The Bill also takes aim at putting an end to the nearly insurmountable barrier created by the Supreme Court’s decision in Alice for software and life science applications.
The proposed amendment also attempts to more clearly define what is excluded from being patented. The amendment states that to be unpatentable, the invention “must exist in nature independently of and prior to any human activity, or exists solely in the human mind.” Section 7(b) of the Bill pointedly states that “this amendment effectively abrogates Alice— to ensure that life sciences discovers, computer software, and similar inventions and discoveries are patentable, and that those patents are enforceable.”
Section 8 changes the publication rules for patent applications. Currently, applications publish 18 months after their initial filing. The Bill intends to make publication something an applicant must opt for. This will prevent failed patent applications to be used against the same applicant if a similar application is filed later on. Other sections of the Bill address tolling during validity challenges, considerations on whether to grant a preliminary injunction and address what can be considered prior art. H.R. 6264 also intends to address another recent Supreme Court decision that found patent rights are a public right by defining patent rights as a private right.
It is unclear at this point whether the Bill will gain any traction. For now, I wouldn’t hold my breath.