Letter to Senate Judiciary Committee On Patent Legislation Changes
July 18, 2019
SBTC Sent the letter linked below to the Senate Judiciary Committee offering our comments on sections 101, 100(k) and 112(f) of legislation proposed to strengthen the patent system.
SBTC Submits Comment on PTAB Claim Amendment Practice
SBTC submitted the comment linked below to the Patent Board in December 2018 in response to a request for comment on a proposed rule change regarding PTAB Claim Amendment Practice and Procedures.
SBTC Submits Comment on PTAB Notice for Rulemaking
SBTC submitted the attached comment in July of 2018 supporting the change in rule altering the Patent Trials and Appeals Board (PTAB)
SBTC Supports the “Restoring America’s Leadership in Innovation Act of 2018”
In June 2018 the Small Business Technology Council sent the below letter offering its support for the “Restoring America’s Leadership in Innovation Act of 2018”, introduced into the House by Representative Thomas Massie (R-KY), and Representative Marcy Kaptur (D-OH). This bill would strengthen patent rights for small businesses by reversing some of the more harmful effects of the America Invents Act
SBTC Supports the STRONGER Patents Act of 2017
In June of 2017, the STRONGER Patents Act of 2017 (S.1390) was introduced in Congress by co-sponsors Senator Chris Coons (D-DE), Senator Tom Cotton (R-AR), Senator Dick Durbin (D-IL) and Senator Mazie Hirono (D-HI). This bill would strengthen our nation’s patent system, while making it easier and less costly for small businesses to defend and protect their intellectual property in court. SBTC stands with our parent organization NSBA in supporting passage of this legislation, and we ask our members to communicate their support for it to their members of Congress.
Other Letters of Support and Explanatory Materials:
SBTC has also participated in a Supreme Court Amicus Brief involving patents:
SBTC Acknowledged for SCOTUS Amicus Brief by Law360
SBTC’s Amicus Brief requesting that the US Supreme Court take the case of Commil v. Cisco Systems was discussed by the website law360.com. The case is about the fact that patent holders have lost their constitutionally guaranteed right to a jury trial. The article states in part:
Expressing concern that patent owners’ right to a jury trial was being eroded, a small-business group [SBTC] and a consulting firm urged the U.S. Supreme Court to hear Commil USA LLC’s appeal of a Federal Circuit ruling that vacated a $74 million verdict against Cisco Systems Inc…
“The Seventh Amendment right to trial by jury is of immense importance to patent owners and the enforcement of their patents,” an attorney for SBTC and Affinity Labs, Patrick M. Arenz of Robins Kaplan LLP, told Law360 on Wednesday.
To read the entire article, please click on the link below. It can only be viewed by subscribers or readers who sign up for a free trial subscription:
The amicus brief can be found here:
The heart of the petition pertains to the sacrosanctity of the right to trial by jury in patent cases. Commil has tried its patent infringement claims against Cisco to a jury—twice. On both occasions, the jury determined that Cisco infringed Commil’s valid claims. And yet the Petitioner is seeking review by this Court because the Federal Circuit reversed the jury’s factual findings regarding infringement. Amici support Commil’s petition, and request further review for the reasons below.
SBTC’s contribution to the Small Inventors Amicus Brief on Halo/Stryker Supreme Court Case was part of the documentation that helped swing the pendulum back toward supporting inventors in patent law.
On June 13, 2016, the Supreme Court rejected the Federal Circuit’s standard for awarding enhanced damages under 35 U.S.C. §284 in companion cases Halo Electronics v. Pulse Electronics and Stryker Corp. v. Zimmer Inc. The Court overturned the Federal Circuit’s objective recklessness standard established in In re Seagate (Fed. Cir. 2007).
The Court also rejected the clear and convincing evidence standard of proof of willfulness, replacing it with the preponderance of evidence standard. Further, the Court adopted the abuse of discretion standard of review, rejecting the appellate standard of review.
Justice Breyer authored a concurrence in which he emphasized the need for due diligence in the form of a clearance opinion. Further, the concurrence expressed concern that the Court’s opinion should not be taken by district courts to mean willful misconduct can be established by knowledge of the patent and nothing more.
This case will make it easier for patent holders to get enhanced damages from infringers, thus taking a small step to enforce patents and subdue infringement. While we have a long way to go, this is significant as it is one of the first cases to stop the tide of weakening patents and start helping inventors and small businesses.
You can read the decision here:
HALO ELECTRONICS, INC. v. PULSE ELECTRONICS, INC., ET AL.
Engage with your Members of Congress on Patent Rights
We also encourage everyone to engage their Congressmen and women through calls, emails, and social media to oppose HR 9 from being brought back to the floor. Below are a sample email and phone script you can use to help you write or call your Congressional representatives. Also below is a “Twitter Kit” with a list of sample tweets, hashtags, handles, and links you can use. Feel free to use or edit these as you see fit.
Finally, here is a 1-page document you can distribute to any legislators or staffers you interact with. It concisely lays out 9 bullet points for why the “Innovation Act” will harm small business and American Innovation:
Patent Reform Issue Background
The SBTC and the NSBA believe that HR 9, along with its sister bill in the Senate S 1137, could have very damaging effects on the patent system and could undermine the ability of small business inventors to protect and defend their intellectual property. Instead, SBTC endorses HR 2045, the “TROL Act”, and S 632, the “STRONG Patents Act”, which do a much more effective job at stopping abuse of patent demand letters, but without weakening the essential protections in the patent system that allow legitimate small business inventors to defend and protect their intellectual property.
Small Inventors Amicus Brief on Halo/Stryker Supreme Court Case
SBTC Contributed to an Amicus Brief for a Supreme Court Case regarding enhanced damages under 35 U.S.C. §284. The Court rejected the clear and convincing evidence standard of proof of willfulness, replacing it with the preponderance of evidence standard.
MCM vs HP Amicus Brief
SBTC Chair Bob Schmidt submitted an amicus brief on May 30th for the case of MCM Porfolio, LLC vs Hewlett-Packard, signed by SBTC and 15 different organizations. At issue is whether inter partes review (IPR) violates Article III of the Constitution; and whether IPR violates the Seventh Amendment to the Constitution. Bob Schmidt and the SBTC’s position is that we agree with MCM that the IPR procedure was beyond Congress’s power to impose, and its underpinning rationale—that patents are a matter of administrative largesse, rather than a constitutionally protected property right—is constitutionally infirm.
SBTC Amicus Brief on Trading Technologies International, Inc. CBM Case
SBTC files an Amicus brief on behalf of Trading Technologies International, arguing that the Patent Trial and Appeal Board is inapproriately applying Covered Business Method patent definition to a technology patented by Trading Technologies. In the case at hand, Trading Technologies International, Inc. is seeking relief from a Patent Trial and Appeal Board review on a piece of software it created and patented because it doesn’t solve a “technical problem”. SBTC’s position is this review stretches the definition of CBM beyond what it was intended to cover, and that the relief should be granted.
Small Inventors Amicus Brief on Halo/Stryker Supreme Court Case
SBTC contributed to this Amicus brief to the Supreme Court on 2 cases related to patent rights.
Bob Schmidt 10.08.15 LEI Patent Policy Conference Written Remarks
Bob Schmidt 10.08.15 LEI Patent Policy Conference Slides
SBTC Co-Chair Bob Schmidt spoke at the Thomson Reuters Legal Executive Institute on the subject of Patent Policy from the perspective of a small business. These links are his written remarks and slides from that speech.
Top 9 Reasons to vote “NO” on HR 9
This one-pager, put together by the Innovation Alliance, highlights 9 different ways HR 9, the “Innovation Act”, could hurt the patent system, small businesses, and America’s economy
Patent Reform in Washington Threatens Cleveland-area Innovation
SBTC Co-Chair Bob Schmidt penned this opinion piece on patent reform that was published in the Northeast Ohio-focused online news service Cleveland.com on August 7.
Joint Statement from AAU, APLU, BIO, IA, MDMA, NSBA, NVCA, PhRMA, SBTC and USIJ on H.R. 9
A joint statement from ten industry and university organizations, including SBTC, voicing opposition to HR 9, the Innovation Act, for the damaging results it will have on intellectual property rights.
SBTC Opposes HR 9, the Innovation Act
We sent this letter to Representative Goodlatte, Chairman of the House Judiciary Committee, outlining our opposition to HR 9 and the manager’s amendment that was under consideration. Unfortunately, the bill was ultimately passed by the committee, and will now face a vote on the House Floor.
Small Businesses Oppose Misguided “Patent Reforms”
An op-ed on patent reform written by SBTC Co-Chair Bob Schmidt that was published in the Daily Caller.
Letter to Speaker Boehner Opposing HR 9
This letter urges Speaker Boehner to oppose HR 9, aka the Innovation Act, and instead support the TROL Act as alternative patent reform legislation.
SBTC Co-Chair Bob Schmidt’s Answers to Senate Small Business Committee Questions Regarding Patent Reform
The Senate Small Business Committee submitted to Bob Schmidt a list of questions after his testimony in March to expand further on the issue of patent reform, this is his response.
SBTC Supports TROL Act Letter
A letter by the SBTC offering our endorsement of the TROL Act as an alternative to HR 9, the “Innovation Act”
HR 9 Crushed Innovation, Killing the American Dream
An op-ed by Bob Schmidt covering HR 9 that was published in The Hill, and describing the ways it will be harmful to the patent system and small business innovation.
SBTC Co-Chair Bob Schmidt’s Written Testimony Before the Senate Small Business Committee Regarding Patent Reform
SBTC Co-Chair Bob Schmidt’s Oral Testimony Before the Senate Small Business Committee Regarding Patent Reform
Co-Chair of SBTC Bob Schmidt Testified before the Senate Small Business Committee in March 2015 to discuss patent reform, and how the current bills being considered could impact small business. These two documents are his submitted written testimony, and his oral testimony.
Letter to US Senate Opposing Senator Warner’s Patent Letter
This Letter was sent to all US Senators asking them not to sign Senator Warner’s letter supporting S 1137
Letter to Members of Congress Opposing Goodlatte/Issa Patent Legislation
An open letter to all members of Congress briefly stating SBTC’s opposition to new patent legislation proposed by Congressmen Darryl Issa and Bob Goodlatte
SBTC Anti-Patent legislation 2-page Summary
A 2-page summary of the changes and items in HR 9 and other patent reform bills that we believe will be severely damaging to the patent system.
Letter to Speaker Boehner Supporting the TROL Act
A letter to Speaker Boehner asking him to support the TROL Act over the “Innovation Act”
SBTC Co-Chair Bob Schmidt’s Testimony on Patent Reform Before House Small Business Committee
Bob Schmidt’s written testimony before the House Small Business Committee hearing on patent reform.
In April of 2014, the intellectual property blog IP Watchdog published a series of 5 articles written by SBTC Co-Chairs Bob Schmidt, Heidi Jacobus, and SBTC Executive Director Jere Glover. These articles covered a comprehensive range of topics on patent reform, laying out the reasons why the proposed legislation will harm small business
Part 1 – Why ‘Patent Reform’ Harms Innovative Small Businesses
Part 2 – Raising the Cost of Enforcing Patents: ‘Patent Reform’ Prices Small Businesses Out of the Inventing Business
Part 3 – ‘Patent Reform’ Will Keep Small Business Inventions From Being Commercialized
Part 4 – ‘Patent Reform’ Tips Power in Favor of Infringers and Against Small Businesses
Part 5 – Why ‘Patent Reform’ Harms Innovative Small Businesses – Summary
NSBA’s position on Patent Reform Legislation
SBTC’s parent organization, the NSBA, has also been active in the patent reform effort, and they share our views on the issues. The following are a series of letters sent to Senate and House leadership asking for support of S 632 and HR 2045, while opposing S 1137 and HR 9.