On June 21, 2017, Senator Chris Coons (D-Del.) introduced the STRONGER Patents Act of 2017 in the Senate. STRONGER is an acronym for “Support Technology and Research for Our Nation’s Growth and Economic Resilience.” The bill was co-sponsored by Senators Tom Cotton (R-Ark.), Dick Durbin (D-Ill.), and Mazie Hirono (D-Haw.). In a press release by Sen. Coons, the STRONGER Patents Act purports “to protect and support inventors and innovators and ensure that our patent system protects this essential property right.” According to the press release, the STRONGER Patents Act is an “improvement” of Sen. Coons’ STRONG Patents Act of 2015, which was not voted on by the full Senate in the last Congressional term.
The STRONGER Patents Act seeks to significantly change several aspects of post-grant review proceedings implemented by the America Invents Act (AIA) of 2011. In his press release, Sen. Coons states that the bill intends to make “the post-issuance proceedings before the Patent Trial and Appeal Board (PTAB) more fair and efficient.” The bill asserts that “unintended consequences of the [AIA] are continuing to become evident, including the strategic filing of post-grant review proceedings to depress stock prices and extort settlements, the filing of repetitive petitions for inter partes and post-grant reviews that have the effect of harassing patent owners, and the unnecessary duplication of work by the district courts of the United States and the Patent Trial and Appeal Board.”
Comparison with Current AIA Trial Practice
The following table illustrates several of the significant changes that the STRONGER Patents Act proposes to make to the current implementation of AIA trial proceedings, including inter partes review (IPR), post-grant review (PGR), and covered business method (CBM) review.[1]
| Current AIA Trial Practice | Proposed Changes in STRONGER Patents Act | |
| Claim Construction | Broadest reasonable interpretation for unexpired patents | Phillips claim construction used in district court and ITC trials |
| Presumption of validity? | No | Yes |
| Burden of Proof | Preponderance of evidence | Clear and convincing |
| Who may challenge? | Any third party who is not time-barred or estopped(for CBMs only, the petitioner must be sued for infringement of the patent, or charged with infringement of the patent). | For IPRs, the petitioner must be sued for infringement of the patent, or charged with infringement of the patent (i.e., the petitioner would have standing to bring a declaratory judgment action in federal district court). For PGRs, the petitioner must demonstrate a reasonable possibility of (i) being sued for infringement of the patent, or charged with infringement of the patent, or (ii) having a competitive harm related to the validity of the patent. |
| How many petitions may be filed against a patent? | There is no formal limit, but the PTAB has |
