I 

116TH CONGRESS 

2D SESSION H. R. 7366 

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 discoveries, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JUNE 25, 2020 

Mr. MASSIE (for himself, Mr. MCCLINTOCK, and Mr. GOSAR) introduced the 

following bill; 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 discoveries, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Restoring America’s Leadership in Innovation Act of 

6 2020’’. 


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1 (b) TABLE OF CONTENTS.—The table of contents for 

2 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Findings. 

Sec. 3. Restoring the right of the first inventor to secure a patent. 

Sec. 4. Abolishing inter partes and post-grant review. 

Sec. 5. Abolishing the Patent Trial and Appeal Board. 

Sec. 6. Elimination of fee diversion and full funding of the United States patent and trademark office. 

Sec. 7. Patentability of scientific discoveries and software inventions. 

Sec. 8. Limitations on prior art. 

Sec. 9. Restoring patents as a property right. 

Sec. 10. Ending automatic publication of patent applications. 

Sec. 11. Presumption of validity; defenses. 

Sec. 12. Injunction. 

Sec. 13. Best mode requirement. 

3 SEC. 2. FINDINGS. 

4 The Congress finds the following: 

5 (1) The Congress created a patent system to 

6 ‘‘promote the Progress of Science and useful Arts, 

7 by securing for limited Times to Authors and Inven8 tors the exclusive Right to their respective Writings 

9 and Discoveries,’’ as provided for in the Constitution 

10 of the United States. 

11 (2) The Leahy-Smith America Invents Act 

12 (Public Law 112–29) enacted on September 16, 

13 2011, and several decisions of the Supreme Court 

14 have harmed the progress of Science and the useful 

15 Arts by eroding the strength and value of the patent 

16 system. 

17 (3) The United States Government exists to 

18 protect life, liberty, and property, which includes in19 tellectual property. 


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1 (4) A United States patent secures a private 

2 property right to an inventor. 

3 (5) This Act restores the patent system as envi4 sioned by the Constitution of the United States. 

5 SEC. 3. RESTORING THE RIGHT OF THE FIRST INVENTOR 

6 TO SECURE A PATENT. 

7 (a) REPEAL OF FIRST-TO-FILE SYSTEM UNDER THE

8 AMERICA INVENTS ACT.—Section 3 of the Leahy-Smith 

9 America Invents Act (Public Law 112–29), including each 

10 amendment made by such section, is repealed and any 

11 amendment made by such section to any provision shall 

12 be effective as if the provision had not been amended by 

13 such section. 

14 (b) FIRST-TO-INVENT.—Notwithstanding any other 

15 provision under title 35, United States Code, a person 

16 shall be entitled to a patent where the inventor is first 

17 to conceive of the invention and diligently reduces the in18 vention to practice. 

19 (c) ONE-YEAR GRACE PERIOD.—Notwithstanding 

20 any other provision under title 35, United States Code, 

21 a person shall be entitled to a one-year grace period before 

22 filing an application for a patent, as the grace period ex23 isted before the date of the enactment of the Leahy-Smith 

24 America Invents Act under section 102 of title 35, United 

25 States Code, and with the same meaning of the terms ‘‘in 


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1 public use’’ and ‘‘on sale in this country’’ as interpreted 

2 before the enactment of the Leahy-Smith America Invents 

3 Act. 

4 (d) SENSE OF CONGRESS.—It is the sense of Con5 gress that— 

6 (1) reverting the United States patent system 

7 from a ‘‘first-to-file’’ system back to ‘‘first-to-in8 vent’’ system will promote the progress of science 

9 and the useful arts by securing for limited times to 

10 inventors the exclusive rights to their discoveries and 

11 incentivize innovation and protect inventors’ rights; 

12 (2) restoring the one-year grace period before 

13 the first and true inventor must file a patent appli14 cation on an invention will promote the progress of 

15 science and useful arts by enabling inventors once 

16 again to disclose inventions in order to attract in17 vestment, complete research and development on the 

18 invention, test, improve, and perfect the invention so 

19 as to improve the invention and the quality of the 

20 patent application; and 

21 (3) the repeal of section 3, and the amendments 

22 made by section 3, of the Leahy-Smith America In23 vents Act, restore sections 100, 102, 103, 135, and 

24 291 of title 35, United States Code, to the way such 


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1 sections read on the day before the date of the en2 actment of such Act. 

3 SEC. 4. ABOLISHING INTER PARTES AND POST-GRANT RE4 VIEW. 

5 (a) REPEAL OF INTER PARTES AND POST-GRANT

6 REVIEW.—Section 6 of the Leahy-Smith America Invents 

7 Act (Public Law 112–29), including each amendment 

8 made by such section, is repealed and any amendment 

9 made by such section to any provision shall be effective 

10 as if the provision had not been amended by such section. 

11 (b) REPEAL OF CODIFIED TITLES.—Chapters 31 and 

12 32 of title 35, United States Code, are repealed. 

13 (c) SENSE OF CONGRESS.—It is the sense of Con14 gress that— 

15 (1) inter partes review and post-grant review 

16 proceedings introduced by the Leahy-Smith America 

17 Invents Act have harmed the progress of science and 

18 the useful arts by subjecting inventors to serial chal19 lenges to patents; 

20 (2) inter partes review and post-grant review 

21 proceedings invalidate patents at an unreasonably 

22 high rate; 

23 (3) patent rights should be protected from un24 fair adjudication at the Patent and Trademark OfVerDate Sep 11 2014 01:44 Jul 21, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H7366.IH H7366

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1 fice and duly issued patents should be adjudicated in 

2 a judicial proceeding; 

3 (4) repealing section 6 of the Leahy-Smith 

4 America Invents Act abolishes inter partes review, 

5 post-grant review, and the previously available inter 

6 partes reexamination proceedings; and 

7 (5) it is the intent of Congress to preserve ex 

8 parte reexamination proceedings under chapter 30 of 

9 title 35, United States Code. 

10 SEC. 5. ABOLISHING THE PATENT TRIAL AND APPEAL 

11 BOARD. 

12 (a) REPEAL OF PATENT TRIAL AND APPEAL

13 BOARD.—Section 7 of the Leahy-Smith America Invents 

14 Act (Public Law 112–29) is repealed, including each 

15 amendment made by such section, and any amendment 

16 made by such section to any provision shall be effective 

17 as if the provision had not been amended by such section. 

18 (b) BOARD OF PATENT APPEALS AND INTER19 FERENCES.— 

20 (1) AMENDMENT.—Section 6 of title 35, United 

21 States Code, is amended to read as follows: 

22 ‘‘§ 6. Board of Patent Appeals and Interferences 

23 ‘‘(a) ESTABLISHMENT AND COMPOSITION.—There 

24 shall be in the Patent and Trademark Office a Board of 

25 Patent Appeals and Interferences. The Director, the DepVerDate Sep 11 2014 00:32 Jul 21, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H7366.IH H7366

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1 uty Director, the Commissioner for Patents, the Commis2 sioner for Trademarks, and the administrative patent 

3 judges shall constitute the Board. The administrative pat4 ent judges shall be persons of competent legal knowledge 

5 and scientific ability who are appointed by the Secretary 

6 of Commerce, in consultation with the Director. 

7 ‘‘(b) DUTIES.—The Board of Patent Appeals and 

8 Interferences shall, on written appeal of an applicant, re9 view adverse decisions of examiners upon applications for 

10 patents and shall determine priority and patentability of 

11 invention in interferences declared under section 135(a). 

12 Each appeal and interference shall be heard by at least 

13 three members of the Board, who shall be designated by 

14 the Director. Only the Board of Patent Appeals and Inter15 ferences may grant rehearings. The Board shall not invali16 date an issued patent except in an ex parte reexamination 

17 under chapter 30. 

18 ‘‘(c) AUTHORITY OF THE SECRETARY.—The Sec19 retary of Commerce may, in the Secretary’s discretion, 

20 deem the appointment of an administrative patent judge 

21 who, before the date of the enactment of this subsection, 

22 held office pursuant to an appointment by the Director, 

23 to take effect on the date on which the Director initially 

24 appointed the administrative patent judge. 


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1 ‘‘(d) DEFENSE TO CHALLENGE OF APPOINTMENT.— 

2 It shall be a defense to a challenge to the appointment 

3 of an administrative patent judge on the basis of the 

4 judge’s having been originally appointed by the Director 

5 that the administrative patent judge so appointed was act6 ing as a de facto officer.’’. 

7 (2) TECHNICAL AND CONFORMING AMEND8 MENT.—The table of sections for chapter 1 of title 

9 35, United States Code, is amended by striking the 

10 item relating to section 6 and inserting the following 

11 new item: 

‘‘6. Board of patent appeals and interferences.’’. 

12 (c) APPEAL TO THE BOARD OF PATENT APPEALS

13 AND INTERFERENCES.— 

14 (1) AMENDMENT.—Section 134 of title 35, 

15 United States Code, as reinstated by section 3(a) of 

16 this Act, is amended by striking subsection (c). 

17 (2) TECHNICAL AND CONFORMING AMEND18 MENT.—The table of sections for chapter 12 of title 

19 35, United States Code, is amended by striking the 

20 item relating to section 134 and inserting the fol21 lowing new item: 

‘‘134. Appeal to the Board of Patent Appeals and Interferences.’’. 

22 (d) APPEAL TO THE COURT OF APPEALS FOR THE

23 FEDERAL CIRCUIT.—Section 141 of title 35, United 

24 States Code, is amended to read as follows: 


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1 ‘‘§ 141. Appeal to the Court of Appeals for the Federal 

2 Circuit 

3 ‘‘(a) EXAMINATIONS.—An applicant dissatisfied with 

4 the decision in an appeal to the Board of Patent Appeals 

5 and Interferences under section 134 may appeal the deci6 sion directly to the United States Court of Appeals for 

7 the Federal Circuit, or may seek review de novo in any 

8 district court of the United States of competent jurisdic9 tion. 

10 ‘‘(b) REEXAMINATIONS.—A patent owner who is, in 

11 a reexamination proceeding, dissatisfied with the final de12 cision in an appeal to the Board of Patent Appeals and 

13 Interferences under section 134 may appeal the decision 

14 directly to the United States Court of Appeals for the Fed15 eral Circuit, or may seek review de novo in a district court 

16 of the United States of competent jurisdiction. 

17 ‘‘(c) INTERFERENCE.—A party to an interference 

18 dissatisfied with the decision of the Board of Patent Ap19 peals and Interferences on the interference may appeal the 

20 decision to the United States Court of Appeals for the 

21 Federal Circuit, but such appeal shall be dismissed if any 

22 adverse party to such interference, within twenty days 

23 after the appellant has filed notice of appeal in accordance 

24 with section 142, files notice with the Director that the 

25 party elects to have all further proceedings conducted as 

26 provided in section 146. If the appellant does not, within 


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1 thirty days after filing of such notice by the adverse party, 

2 file a civil action under section 146, the decision appealed 

3 from shall govern the further proceedings in the case.’’. 

4 (e) SENSE OF CONGRESS.—It is the sense of Con5 gress that— 

6 (1) the Patent Trial and Appeal Board shall be 

7 replaced with the former Board of Patent Appeals 

8 and Interferences; 

9 (2) with the abolishment of inter partes review 

10 and post-grant review proceedings, the Patent Trial 

11 and Appeal Board is no longer needed to conduct 

12 these duties; 

13 (3) unless otherwise in the context of an ex 

14 parte reexamination under chapter 30 of title 35, 

15 United States Code, the Board of Patent Appeals 

16 and Interferences will not be used to invalidate an 

17 already issued patent; 

18 (4) the changes described in paragraphs (1) 

19 through (3) will protect the rights of patent owners 

20 who have been granted a patent and ensure a fair, 

21 fully adjudicated proceeding to invalidate an issued 

22 patent; 

23 (5) the amendment to section 6 of title 35, 

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1 quire a judicial proceeding to invalidate an issued 

2 patent; and 

3 (6) the amendments to section 134 of title 35, 

4 United States Code, and section 141 of title 35, 

5 United States Code, are intended to restore each re6 spective section to its prior state, but delete any ref7 erence to inter partes reexamination, which is no 

8 longer available. 

9 SEC. 6. ELIMINATION OF FEE DIVERSION AND FULL FUND10 ING OF THE UNITED STATES PATENT AND 

11 TRADEMARK OFFICE. 

12 (a) PATENT AND TRADEMARK OFFICE FUNDING.— 

13 Section 42 of title 35, United States Code, is amended— 

14 (1) in subsection (a), by striking ‘‘(a) All fees’’ 

15 and inserting ‘‘(a) IN GENERAL.—Fees’’; 

16 (2) in subsection (b)— 

17 (A) by striking ‘‘(b) All fees’’ and inserting 

18 ‘‘(b) CREDIT OF FEES.—Fees’’; and 

19 (B) by striking ‘‘Patent and Trademark 

20 Office Appropriation Account’’ and inserting 

21 ‘‘United States Patent and Trademark Office 

22 Innovation Promotion Fund’’; 

23 (3) in subsection (c)— 


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1 (A) by striking ‘‘(1) To the extent’’ and all 

2 that follows through ‘‘fees’’ and inserting ‘‘(c) 

3 USE OF FEES.—(1) Fees’’; 

4 (B) in paragraph (1), by striking ‘‘shall be 

5 collected by and shall, subject to paragraph (3), 

6 be available to the Director’’ and inserting 

7 ‘‘shall be collected by the Director and shall be 

8 available to the Director until expended’’; 

9 (C) by striking paragraph (2); and 

10 (D) by redesignating paragraph (3) as 

11 paragraph (2); 

12 (4) by redesignating subsections (d) and (e) as 

13 subsections (e) and (f), respectively; 

14 (5) by inserting after subsection (c) the fol15 lowing: 

16 ‘‘(d) REVOLVING FUND.— 

17 ‘‘(1) DEFINITIONS.—In this subsection: 

18 ‘‘(A) FUND.—The term ‘Fund’ means the 

19 United States Patent and Trademark Office In20 novation Promotion Fund established under 

21 paragraph (2). 

22 ‘‘(B) TRADEMARK ACT OF 1946.—The term 

23 ‘Trademark Act of 1946’ means the Act enti24 tled ‘An Act to provide for the registration and 

25 protection of trademarks used in commerce, to 


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1 carry out the provisions of certain international 

2 conventions, and for other purposes’, approved 

3 July 5, 1946 (15 U.S.C. 1051 et seq.) (com4 monly referred to as the ‘Trademark Act of 

5 1946’ or the ‘Lanham Act’). 

6 ‘‘(2) ESTABLISHMENT.—There is established in 

7 the Treasury a revolving fund to be known as the 

8 ‘United States Patent and Trademark Office Inno9 vation Promotion Fund’. 

10 ‘‘(3) DERIVATION OF RESOURCES.—There shall 

11 be deposited into the Fund any fees collected 

12 under— 

13 ‘‘(A) this title; or 

14 ‘‘(B) the Trademark Act of 1946. 

15 ‘‘(4) EXPENSES.—Amounts deposited into the 

16 Fund under paragraph (3) shall be available, with17 out fiscal year limitation, to cover— 

18 ‘‘(A) all expenses to the extent consistent 

19 with the limitation on the use of fees set forth 

20 in subsection (c), including all administrative 

21 and operating expenses, determined in the dis22 cretion of the Director to be ordinary and rea23 sonable, incurred by the Director for the contin24 ued operation of all services, programs, activi25 ties, and duties of the Office relating to patents 


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1 and trademarks, as such services, programs, ac2 tivities, and duties are described under— 

3 ‘‘(i) this title; and 

4 ‘‘(ii) the Trademark Act of 1946; and 

5 ‘‘(B) all expenses incurred pursuant to any 

6 obligation, representation, or other commitment 

7 of the Office.’’; 

8 (6) in subsection (e), as so redesignated, by 

9 striking ‘‘The Director’’ and inserting ‘‘REFUNDS.— 

10 The Director’’; and 

11 (7) in subsection (f), as so redesignated, by 

12 striking ‘‘The Secretary’’ and inserting ‘‘REPORT.— 

13 The Secretary’’. 

14 (b) EFFECTIVE DATE; TRANSFER FROM AND TERMI15 NATION OF OBSOLETE FUNDS.— 

16 (1) EFFECTIVE DATE.—The amendments made 

17 by subsection (a) shall take effect on the first day 

18 of the first fiscal year that begins on or after the 

19 date of the enactment of this Act. 

20 (2) REMAINING BALANCES.—There shall be de21 posited in the Fund, on the effective date described 

22 in paragraph (1), any available unobligated balances 

23 remaining in the Patent and Trademark Office Ap24 propriation Account, and in the Patent and Trade25 mark Fee Reserve Fund established under section 


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1 42(c)(2) of title 35, United States Code, as in effect 

2 on the day before the effective date. 

3 (3) TERMINATION OF RESERVE FUND.—Upon 

4 the payment of all obligated amounts in the Patent 

5 and Trademark Fee Reserve Fund under paragraph 

6 (2), the Patent and Trademark Fee Reserve Fund 

7 shall be terminated. 

8 SEC. 7. PATENTABILITY OF SCIENTIFIC DISCOVERIES AND 

9 SOFTWARE INVENTIONS. 

10 (a) AMENDMENT.—Section 101 of title 35, United 

11 States Code, is amended to read as follows: 

12 ‘‘§ 101. Inventions patentable 

13 ‘‘(a) IN GENERAL.—Whoever invents or discovers 

14 any new and useful process, machine, manufacture, or 

15 composition of matter, or any new and useful improvement 

16 thereof, may obtain a patent therefor, subject to the condi17 tions and requirements of this title. 

18 ‘‘(b) EXCEPTION.—A claimed invention is ineligible 

19 patent subject matter under subsection (a) if the claimed 

20 invention as a whole, as understood by a person having 

21 ordinary skill in the art, exists in nature independently 

22 of and prior to any human activity, or exists solely in the 

23 human mind. 

24 ‘‘(c) ELIGIBILITY STANDARD.—The eligibility of a 

25 claimed invention under subsections (a) and (b) shall be 


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1 determined without regard as to the requirements or con2 ditions of sections 102, 103, and 112 of this title, or the 

3 claimed invention’s inventive concept.’’. 

4 (b) SENSE OF CONGRESS.—It is the sense of Con5 gress that— 

6 (1) the Supreme Court’s recent jurisprudence 

7 concerning subject matter patentability has harmed 

8 the progress of science and the useful arts; 

9 (2) the United States patent system must pro10 tect and encourage research and development in 

11 such scientific disciplines as would promote the 

12 progress of science and the useful arts by securing 

13 for limited times to inventors the exclusive rights to 

14 their discoveries and provide scientists in the life 

15 sciences, computer sciences, and other disciplines, 

16 with certainty that their discoveries and inventions 

17 are entitled to patent protection; and 

18 (3) this amendment effectively abrogates Alice 

19 Corp. v. CLS Bank International, 134 S. Ct. 2347 

20 (2014) and its predecessors to ensure that life 

21 sciences discoveries, computer software, and similar 

22 inventions and discoveries are patentable, and that 

23 those patents are enforceable. 


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1 SEC. 8. LIMITATIONS ON PRIOR ART. 

2 Section 102 of title 35, United States Code, is 

3 amended to read as follows: 

4 ‘‘§ 102. Conditions for patentability; novelty 

5 ‘‘(a) IN GENERAL.—A person shall be entitled to a 

6 patent unless— 

7 ‘‘(1) the invention was known or used by others 

8 in this country, or patented or described in a printed 

9 publication in this or a foreign country, before the 

10 invention thereof by the applicant for patent; 

11 ‘‘(2) the invention was patented or described in 

12 a printed publication in this or a foreign country or 

13 in public use or on sale in this country, more than 

14 one year prior to the date of the application for pat15 ent in the United States; 

16 ‘‘(3) he has abandoned the invention; 

17 ‘‘(4) the invention was first patented or caused 

18 to be patented, or was the subject of an inventor’s 

19 certificate, by the applicant or his legal representa20 tives or assigns in a foreign country prior to the 

21 date of the application for patent in this country on 

22 an application for patent or inventor’s certificate 

23 filed more than twelve months before the filing of 

24 the application in the United States; 

25 ‘‘(5) the invention was described in (1) an ap26 plication for patent, published under section 122(b), 


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1 by another filed in the United States before the in2 vention by the applicant for patent or (2) a patent 

3 granted on an application for patent by another filed 

4 in the United States before the invention by the ap5 plicant for patent, except that an international appli6 cation filed under the treaty defined in section 

7 351(a) shall have the effects for the purposes of this 

8 subsection of an application filed in the United 

9 States only if the international application des10 ignated the United States and was published under 

11 Article 21(2) of such treaty in the English language; 

12 ‘‘(6) he did not himself invent the subject mat13 ter sought to be patented; or 

14 ‘‘(7)(A) during the course of an interference 

15 conducted under section 135 or section 291, another 

16 inventor involved therein establishes, to the extent 

17 permitted in section 104, that before such person’s 

18 invention thereof the invention was made by such 

19 other inventor and not abandoned, suppressed, or 

20 concealed; or 

21 ‘‘(B) before such person’s invention thereof, the 

22 invention was made in this country by another in23 ventor who had not abandoned, suppressed, or con24 cealed it. In determining priority of invention under 

25 this subsection, there shall be considered not only 


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1 the respective dates of conception and reduction to 

2 practice of the invention, but also the reasonable 

3 diligence of one who was first to conceive and last 

4 to reduce to practice, from a time prior to concep5 tion by the other. 

6 ‘‘(b) DISCLOSURES IN PATENT APPLICATIONS AND

7 PATENTS.—A disclosure shall not be prior art to a claimed 

8 invention under this section if before the issuance of a pat9 ent— 

10 ‘‘(1) the information disclosed was obtained di11 rectly or indirectly from the inventor or a joint in12 ventor; 

13 ‘‘(2) the information disclosed to the Office or 

14 another party during the one-year period prior to 

15 the date of the application for patent had, before a 

16 patent application for the information was effectively 

17 filed, been publicly disclosed by the inventor or a 

18 joint inventor; or 

19 ‘‘(3) the information disclosed and the claimed 

20 invention, not later than the effective filing date of 

21 the claimed invention, were owned by the same per22 son or subject to an obligation of assignment to the 

23 same person.’’. 

24 SEC. 9. RESTORING PATENTS AS A PROPERTY RIGHT. 

25 (a) PRIVATE PROPERTY PATENT RIGHT.— 


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1 (1) AMENDMENT.—Chapter 10 of title 35, 

2 United States Code, is amended by adding at the 

3 end the following new section: 

4 ‘‘§ 106. Private property patent right 

5 ‘‘A patent right is a private property right secured 

6 to an inventor upon issuance of the patent that shall only 

7 be revoked by a court ruling in a judicial proceeding, un8 less the patent owner consents to an administrative or 

9 other procedure.’’. 

10 (2) TECHNICAL AND CONFORMING AMEND11 MENT.—The table of sections for chapter 10 of title 

12 35, United States Code, is amended by adding at 

13 the end the following new item: 

‘‘106. Private property patent right.’’. 

14 (b) OWNERSHIP; ASSIGNMENT.—Section 261 of title 

15 35, United States Code, is amended— 

16 (1) in the first sentence, by striking ‘‘patents 

17 shall have the attributes of personal property’’ and 

18 inserting the following: ‘‘patents shall be recognized 

19 as private property rights’’; and 

20 (2) by inserting after the second sentence the 

21 following: 

22 ‘‘As private property rights, applications for patents, 

23 patents, and interests therein shall be freely transferrable, 

24 in whole or in part, including conveyance by assignment 

25 or license. Any successors, heirs, assigns, or licensees of 


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1 a patent owner, who receive a lesser interest in a patent, 

2 shall be subject to any and all restrictions of their interest 

3 in the patent, provided that the successors, heirs, assigns, 

4 or licensees have actual or constructive notice of such re5 strictions.’’. 

6 (c) SENSE OF CONGRESS.—It is the sense of Con7 gress that— 

8 (1) recent jurisprudence of the United States 

9 Supreme Court, including Impression Products Inc. 

10 v. Lexmark International, Inc., have harmed the 

11 progress of science and the useful arts by limiting 

12 the ability of patent owners to exclude unlicensed 

13 customers from their supply chains; and 

14 (2) meaningful patent rights must permit pat15 ent owners to freely assign their rights in whole, or 

16 in part, and to ensure that successors, heirs, or as17 signs of a patent owner, or their assigns, are duly 

18 bound by restrictions or exclusions set by patent 

19 owners on the use of their property. 

20 SEC. 10. ENDING AUTOMATIC PUBLICATION OF PATENT AP21 PLICATIONS. 

22 (a) AMENDMENT.—Section 122(b) of title 35, United 

23 States Code, is amended to read as follows: 

24 ‘‘(b) PUBLICATION.— 


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1 ‘‘(1) IN GENERAL.—Each application for a pat2 ent shall be published, in accordance with procedures 

3 determined by the Director, only upon the request of 

4 the patent applicant. 

5 ‘‘(2) INFORMATION RELEASED ONCE A PATENT

6 ISSUES.—No information concerning a patent appli7 cation shall be available to the public unless and 

8 until a patent issues.’’. 

9 (b) SENSE OF CONGRESS.—It is the sense of Con10 gress that— 

11 (1) automatic publication of patent applications 

12 after 18 months has harmed the progress of science 

13 and the useful arts by creating ‘‘prior art’’ by oper14 ation of law that prevents a patent owner from ap15 plying for a patent on the same invention if a patent 

16 does not issue; and 

17 (2) automatic publication of patent applications 

18 encourages early disclosure of claimed inventions 

19 and subjects innovative inventions and discoveries 

20 reduced to practice in the United States to theft or 

21 appropriation by foreign competitors. 

22 SEC. 11. PRESUMPTION OF VALIDITY; DEFENSES. 

23 (a) VALIDITY OF A PATENT IN ADJUDICATORY PRO24 CEEDINGS.—Section 282(a) of title 35, United States 

25 Code, is amended to read as follows: 


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1 ‘‘(a) IN GENERAL.— 

2 ‘‘(1) PRESUMPTION OF VALIDITY FOR A PAT3 ENT.—In any judicial or administrative proceeding 

4 conducted in any court or Federal agency (as de5 fined in section 201) or of any State, a patent issued 

6 under this title shall be presumed valid. 

7 ‘‘(2) PRESUMPTION OF VALIDITY FOR CLAIMS

8 OF A PATENT.—In any proceeding described under 

9 paragraph (1)— 

10 ‘‘(A) each claim of a patent (whether in 

11 independent, dependent, or multiple dependent 

12 form) shall be presumed valid independently of 

13 the validity of other claims; and 

14 ‘‘(B) dependent or multiple dependent 

15 claims shall be presumed valid even though de16 pendent upon an invalid claim. 

17 ‘‘(3) BURDEN OF ESTABLISHING INVALIDITY.— 

18 In any proceeding described under paragraph (1) in 

19 which the validity of a patent is at issue, the burden 

20 of establishing invalidity of a patent or any claim 

21 thereof rests on the party asserting the invalidity by 

22 clear and convincing evidence.’’. 

23 (b) TOLLING PATENT TERM DURING JUDICIAL

24 CHALLENGE.—Section 282 of title 35, United States 

25 Code, is amended by adding at the end the following: 


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1 ‘‘(d) TOLLING OF PATENT TERM DURING VALIDITY

2 CHALLENGE.—In an action involving a patent where the 

3 validity of the patent has been challenged, the patent term 

4 shall be tolled from the time the validity of the patent is 

5 challenged to the time of resolution of the validity issue 

6 by the court. The patent term shall resume once the valid7 ity challenge is resolved. The court may award damages 

8 to the patent owner in a case in which another party 

9 brought a validity claim against the patent in bad faith.’’. 

10 SEC. 12. INJUNCTION. 

11 Section 283 of title 35, United States Code, is 

12 amended— 

13 (1) by striking ‘‘The’’ and inserting the fol14 lowing: 

15 ‘‘(a) IN GENERAL.—The’’; and 

16 (2) by adding at the end the following new sub17 section: 

18 ‘‘(b) PERMANENT INJUNCTION.— 

19 ‘‘(1) IN GENERAL.—Upon a finding of infringe20 ment of a patent, the court shall presume that fur21 ther infringement of the patent would cause the pat22 ent owner irreparable harm. This presumption may 

23 be overcome only by a showing of clear and con24 vincing evidence by the infringing party that the 

25 patent owner would not be irreparably harmed by 


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1 further infringement of the patent. The patent 

2 owner is not required to make or sell a product cov3 ered by the patent to show irreparable harm. 

4 ‘‘(2) PATENT OWNER DEFINED.—In this sub5 section, a ‘patent owner’ means the owner of the 

6 patent or an exclusive licensee of the patent.’’. 

7 SEC. 13. BEST MODE REQUIREMENT. 

8 Section 15 of the Leahy-Smith America Invents Act 

9 (Public Law 112–29), including each amendment made by 

10 such section, is repealed and any provision amended by 

11 such section shall be amended to read as in effect on the 

12 day before the date of the enactment of such Act. 

Æ 


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