RAMP Act

To reform and improve procedures for amending patents subject to post-issuance review proceedings of the United States Patent and Trademark Office, and for other purposes. 1. Short title This Act may be cited as the Revitalizing Amendment Motions for Patents Act of 2018 RAMP Act 2. Reform of Patent Amendments in PTAB proceedings (a) Procedures for motions To amend Section 316(d) of title 35, United States Code, is amended by inserting at the end the following new paragraphs: (4) Procedures for motions to amend (A) In general With respect to a motion to amend filed under paragraph (1) or (2) that proposes 1 or more substitute claims— (i) a substitute claim shall be construed according to its broadest reasonable interpretation for the purposes of determining the patentability of the substitute claim; (ii) the petitioner shall be given a reasonable opportunity to respond to each substitute claim; (iii) the Director shall assign an examiner to examine each proposed substitute claim (giving consideration to the evidence and the arguments presented by the parties) and to submit to the Patent Trial and Appeal Board an advisory report, which shall be non-binding, on the patentability of each such substitute claim; and (iv) the Board shall consider such report in deciding the motion. (B) Rule of construction Nothing in subparagraph (A) may be construed as affecting the provisions of subsection (a)(11). (C) Matters not considered on appeal With respect to an appeal described under section 319, a party to the appeal may not challenge the decision of the Patent Trial and Appeal Board regarding a motion to amend under this paragraph on the basis of— (i) the qualifications or expertise of the examiner assigned by the Director under subparagraph (A); or (ii) any content of the report submitted pursuant to subparagraph (A) that was not expressly relied on by the Patent Trial and Appeal Board in such decision. (5) Expedited post-review reexamination (A) Availability of expedited post-review reexamination An owner of a patent may file a request for an expedited post-review reexamination by the Office of a challenged patent claim for which a final written decision of the Patent Trial and Appeal Board under section 318(a) was issued if the following requirements are met: (i) The challenged patent claim was determined to be unpatentable in such final written decision. (ii) During the inter partes review for which such final written decision was issued, the owner of the patent filed a timely motion to amend the patent that proposed 1 or more substitute claims for the challenged patent claim. (iii) The motion to amend was denied as to each substitute claim proposed for the challenged patent claim. (iv) The request for the expedited post-review reexamination of the challenged patent claim is made on the basis of the prior art asserted during such inter partes review against— (I) the challenged patent claim; or (II) a substitute claim proposed for the challenged claim. (B) Procedures for request and conduct of reexamination A request for expedited post-review reexamination under this paragraph and the conduct of such reexamination under this paragraph shall be subject to section 302 and sections 304 through 307, except that— (i) the Director shall establish, by regulation, a time period (which may not exceed 60 days) after the time for filing an appeal of a final written decision of the Patent Trial and Appeal Board under section 318(a) has expired, or after the final disposition of any such appeal, during which the owner of the patent may request an expedited post-review reexamination under this paragraph; (ii) only the owner of the patent may file a request for an expedited post-review reexamination under this paragraph; (iii) for the purposes of section 304, a determination that a substantial new question of unpatentability is raised shall be assumed, and not later than 14 days after a request for an expedited post-review reexamination is filed, the Director shall order the reexamination of the challenged patent claim identified in the request if the Director determines that the request meets the requirements of subparagraph (A); (iv) the owner of the patent may not file a statement under section 304 and the reexamination shall begin immediately upon the order of the reexamination; (v) in any expedited post-review reexamination proceeding under this paragraph, the owner of the patent may only propose amended or new claims that are patentably distinct from the challenged patent claim of which the expedited post-review reexamination was requested; (vi) the full record of the inter partes review upon which the post-review reexamination was requested shall be made available for consideration during the reexamination; and (vii) the reexamination (excluding any appeal thereof) shall be concluded on the date that is not later than 180 days after the date on which the Director orders the reexamination. . (b) Patent owner’s actions Section 315(b) of title 35, United States Code, is amended to read as follows: (b) Patent owner’s actions (1) In general An inter partes review may not be instituted if the petition requesting the proceeding is filed more than 1 year after the date on which the petitioner, real party in interest, or privy of the petitioner is served with a complaint alleging infringement of the patent. (2) Exception for joinder The time limitation in paragraph (1) shall not apply to a request for joinder under subsection (c). (3) Exception for amended claims The time limitation in paragraph (1) shall not apply to a challenge in a petition for inter partes review against a patent claim that was amended pursuant to section 316(d)(5) unless the complaint was served after the issuance of a certificate under section 307(a) for the patent claim. . (c) Amendment to procedures for issuance of certificate Section 318(b) of title 35, United States Code, is amended— (1) by striking and the time for appeal , the time for appeal (2) by inserting and the time for filing a request under section 316(d)(5)(A) has expired or any post-review reexamination has been terminated, terminated, 3. Clarification of which claims for which the PTAB shall issue a final written decision Section 318(a) of title 35, United States Code, is amended by striking challenged by the petitioner on which the inter partes review was instituted

Summary: Revitalizing Amendment Motions for Patents Act of 2018 or the RAMP Act This bill establishes that for motions to amend patent claims challenged at the Patent Trial and Appeal Board (PTAB), a patent examiner shall prepare an advisory report about the patentability of the proposed amended claims, which the PTAB shall consider when deciding the motion. The proposed amended claims shall be construed under the broadest reasonable interpretation standard for the purposes of the motion.