Restoring America’s Leadership in Innovation Act of 2021
Bill: H.R.5874 | Sponsor: Rep. Massie, Thomas (R-KY)
Policy area: Commerce

Summary:
Restoring America's Leadership in Innovation Act of 2021
This bill revises several aspects of patent law.
The bill changes the U.S. patent system back to a first-to-invent system, in which the first inventor to conceive of an invention is entitled to a patent. Currently, the first person to file an application that meets all the necessary requirements is entitled to the patent.
Several types of administrative patent challenge proceedings are abolished, as well as the Patent and Trademark Office (PTO) body that decides those proceedings.
The bill relaxes the standard for what constitutes patent-eligible subject matter. The only ineligible inventions shall be those that exist in nature independent or prior to human activity or that exist solely in the human mind.
The bill also makes it easier for a patent owner that has won an infringement case in court to secure a permanent injunction against the infringing defendant. Specifically, there shall be a presumption that further infringement would cause irreparable harm to the prevailing patent owner, and the burden shall be on the infringer to prove otherwise. (Currently, a prevailing patent owner seeking a permanent injunction must prove, among other things, that further infringement would cause irreparable harm.)
The bill limits what types of publications shall be treated as prior art that could be used to make an invention be considered to be anticipated or obvious (and therefore not patentable).
The bill authorizes the PTO to keep and spend all the fees that it collects.

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.

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Restoring 
America's Leadership in Innovation Act of 2021''.
    (b) Table of Contents.--The table of contents for 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.

SEC. 2. FINDINGS.

    The Congress finds the following:
            (1) The Congress created a patent system to ``promote the 
        Progress of Science and useful Arts, by securing for limited 
        Times to Authors and Inventors the exclusive Right to their 
        respective Writings and Discoveries,'' as provided for in the 
        Constitution of the United States.
            (2) The Leahy-Smith America Invents Act (Public Law 112-29) 
        enacted on September 16, 2011, and several decisions of the 
        Supreme Court have harmed the progress of Science and the 
        useful Arts by eroding the strength and value of the patent 
        system.
            (3) The United States Government exists to protect life, 
        liberty, and property, which includes intellectual property.
            (4) A United States patent secures a private property right 
        to an inventor.
            (5) This Act restores the patent system as envisioned by 
        the Constitution of the United States.

SEC. 3. RESTORING THE RIGHT OF THE FIRST INVENTOR TO SECURE A PATENT.

    (a) Repeal of First-to-File System Under the America Invents Act.--
Section 3 of the Leahy-Smith America Invents Act (Public Law 112-29), 
including each amendment made by such section, is repealed and any 
amendment made by such section to any provision shall be effective as 
if the provision had not been amended by such section.
    (b) First-to-Invent.--Notwithstanding any other provision under 
title 35, United States Code, a person shall be entitled to a patent 
where the inventor is first to conceive of the invention and diligently 
reduces the invention to practice.
    (c) One-Year Grace Period.--Notwithstanding any other provision 
under title 35, United States Code, a person shall be entitled to a 
one-year grace period before filing an application for a patent, as the 
grace period existed before the date of the enactment of the Leahy-
Smith America Invents Act under section 102 of title 35, United States 
Code, and with the same meaning of the terms ``in public use'' and ``on 
sale in this country'' as interpreted before the enactment of the 
Leahy-Smith America Invents Act.
    (d) Sense of Congress.--It is the sense of Congress that--
            (1) reverting the United States patent system from a 
        ``first-to-file'' system back to ``first-to-invent'' system 
        will promote the progress of science and the useful arts by 
        securing for limited times to inventors the exclusive rights to 
        their discoveries and incentivize innovation and protect 
        inventors' rights;
            (2) restoring the one-year grace period before the first 
        and true inventor must file a patent application on an 
        invention will promote the progress of science and useful arts 
        by enabling inventors once again to disclose inventions in 
        order to attract investment, complete research and development 
        on the invention, test, improve, and perfect the invention so 
        as to improve the invention and the quality of the patent 
        application; and
            (3) the repeal of section 3, and the amendments made by 
        section 3, of the Leahy-Smith America Invents Act, restore 
        sections 100, 102, 103, 135, and 291 of title 35, United States 
        Code, to the way such sections read on the day before the date 
        of the enactment of such Act.

SEC. 4. ABOLISHING INTER PARTES AND POST-GRANT REVIEW.

    (a) Repeal of Inter Partes and Post-Grant Review.--Section 6 of the 
Leahy-Smith America Invents Act (Public Law 112-29), including each 
amendment made by such section, is repealed and any amendment made by 
such section to any provision shall be effective as if the provision 
had not been amended by such section.
    (b) Repeal of Codified Titles.--Chapters 31 and 32 of title 35, 
United States Code, are repealed.
    (c) Sense of Congress.--It is the sense of Congress that--
            (1) inter partes review and post-grant review proceedings 
        introduced by the Leahy-Smith America Invents Act have harmed 
        the progress of science and the useful arts by subjecting 
        inventors to serial challenges to patents;
            (2) inter partes review and post-grant review proceedings 
        invalidate patents at an unreasonably high rate;
            (3) patent rights should be protected from unfair 
        adjudication at the Patent and Trademark Office and duly issued 
        patents should be adjudicated in a judicial proceeding;
            (4) repealing section 6 of the Leahy-Smith America Invents 
        Act abolishes inter partes review, post-grant review, and the 
        previously available inter partes reexamination proceedings; 
        and
            (5) it is the intent of Congress to preserve ex parte 
        reexamination proceedings under chapter 30 of title 35, United 
        States Code.

SEC. 5. ABOLISHING THE PATENT TRIAL AND APPEAL BOARD.

    (a) Repeal of Patent Trial and Appeal Board.--Section 7 of the 
Leahy-Smith America Invents Act (Public Law 112-29) is repealed, 
including each amendment made by such section, and any amendment made 
by such section to any provision shall be effective as if the provision 
had not been amended by such section.
    (b) Board of Patent Appeals and Interferences.--
            (1) Amendment.--Section 6 of title 35, United States Code, 
        is amended to read as follows:
``Sec. 6. Board of Patent Appeals and Interferences
    ``(a) Establishment and Composition.--There shall be in the Patent 
and Trademark Office a Board of Patent Appeals and Interferences. The 
Director, the Deputy Director, the Commissioner for Patents, the 
Commissioner for Trademarks, and the administrative patent judges shall 
constitute the Board. The administrative patent judges shall be persons 
of competent legal knowledge and scientific ability who are appointed 
by the Secretary of Commerce, in consultation with the Director.
    ``(b) Duties.--The Board of Patent Appeals and Interferences shall, 
on written appeal of an applicant, review adverse decisions of 
examiners upon applications for patents and shall determine priority 
and patentability of invention in interferences declared under section 
135(a). Each appeal and interference shall be heard by at least three 
members of the Board, who shall be designated by the Director. Only the 
Board of Patent Appeals and Interferences may grant rehearings. The 
Board shall not invalidate an issued patent except in an ex parte 
reexamination under chapter 30.
    ``(c) Authority of the Secretary.--The Secretary of Commerce may, 
in the Secretary's discretion, deem the appointment of an 
administrative patent judge who, before the date of the enactment of 
this subsection, held office pursuant to an appointment by the 
Director, to take effect on the date on which the Director initially 
appointed the administrative patent judge.
    ``(d) Defense to Challenge of Appointment.--It shall be a defense 
to a challenge to the appointment of an administrative patent judge on 
the basis of the judge's having been originally appointed by the 
Director that the administrative patent judge so appointed was acting 
as a de facto officer.''.
            (2) Technical and conforming amendment.--The table of 
        sections for chapter 1 of title 35, United States Code, is 
        amended by striking the item relating to section 6 and 
        inserting the following new item:

        ``6. Board of patent appeals and interferences.''.
    (c) Appeal to the Board of Patent Appeals and Interferences.--
            (1) Amendment.--Section 134 of title 35, United States 
        Code, as reinstated by section 3(a) of this Act, is amended by 
        striking subsection (c).
            (2) Technical and conforming amendment.--The table of 
        sections for chapter 12 of title 35, United States Code, is 
        amended by striking the item relating to section 134 and 
        inserting the following new item:

        ``134. Appeal to the Board of Patent Appeals and 
                            Interferences.''.
    (d) Appeal to the Court of Appeals for the Federal Circuit.--
Section 141 of title 35, United States Code, is amended to read as 
follows:
``Sec. 141. Appeal to the Court of Appeals for the Federal Circuit
    ``(a) Examinations.--An applicant dissatisfied with the decision in 
an appeal to the Board of Patent Appeals and Interferences under 
section 134 may appeal the decision directly to the United States Court 
of Appeals for the Federal Circuit, or may seek review de novo in any 
district court of the United States of competent jurisdiction.
    ``(b) Reexaminations.--A patent owner who is, in a reexamination 
proceeding, dissatisfied with the final decision in an appeal to the 
Board of Patent Appeals and Interferences under section 134 may appeal 
the decision directly to the United States Court of Appeals for the 
Federal Circuit, or may seek review de novo in a district court of the 
United States of competent jurisdiction.
    ``(c) Interference.--A party to an interference dissatisfied with 
the decision of the Board of Patent Appeals and Interferences on the 
interference may appeal the decision to the United States Court of 
Appeals for the Federal Circuit, but such appeal shall be dismissed if 
any adverse party to such interference, within twenty days after the 
appellant has filed notice of appeal in accordance with section 142, 
files notice with the Director that the party elects to have all 
further proceedings conducted as provided in section 146. If the 
appellant does not, within thirty days after filing of such notice by 
the adverse party, file a civil action under section 146, the decision 
appealed from shall govern the further proceedings in the case.''.
    (e) Sense of Congress.--It is the sense of Congress that--
            (1) the Patent Trial and Appeal Board shall be replaced 
        with the former Board of Patent Appeals and Interferences;
            (2) with the abolishment of inter partes review and post-
        grant review proceedings, the Patent Trial and Appeal Board is 
        no longer needed to conduct these duties;
            (3) unless otherwise in the context of an ex parte 
        reexamination under chapter 30 of title 35, United States Code, 
        the Board of Patent Appeals and Interferences will not be used 
        to invalidate an already issued patent;
            (4) the changes described in paragraphs (1) through (3) 
        will protect the rights of patent owners who have been granted 
        a patent and ensure a fair, fully adjudicated proceeding to 
        invalidate an issued patent;
            (5) the amendment to section 6 of title 35, United States 
        Code, reflects Congress's intent to require a judicial 
        proceeding to invalidate an issued patent; and
            (6) the amendments to section 134 of title 35, United 
        States Code, and section 141 of title 35, United States Code, 
        are intended to restore each respective section to its prior 
        state, but delete any reference to inter partes reexamination, 
        which is no longer available.

SEC. 6. ELIMINATION OF FEE DIVERSION AND FULL FUNDING OF THE UNITED 
              STATES PATENT AND TRADEMARK OFFICE.

    (a) Patent and Trademark Office Funding.--Section 42 of title 35, 
United States Code, is amended--
            (1) in subsection (a), by striking ``(a) All fees'' and 
        inserting ``(a) In General.--Fees'';
            (2) in subsection (b)--
                    (A) by striking ``(b) All fees'' and inserting 
                ``(b) Credit of Fees.--Fees''; and
                    (B) by striking ``Patent and Trademark Office 
                Appropriation Account'' and inserting ``United States 
                Patent and Trademark Office Innovation Promotion 
                Fund'';
            (3) in subsection (c)--
                    (A) by striking ``(1) To the extent'' and all that 
                follows through ``fees'' and inserting ``(c) Use of 
                Fees.--(1) Fees'';
                    (B) in paragraph (1), by striking ``shall be 
                collected by and shall, subject to paragraph (3), be 
                available to the Director'' and inserting ``shall be 
                collected by the Director and shall be available to the 
                Director until expended'';
                    (C) by striking paragraph (2); and
                    (D) by redesignating paragraph (3) as paragraph 
                (2);
            (4) by redesignating subsections (d) and (e) as subsections 
        (e) and (f), respectively;
            (5) by inserting after subsection (c) the following:
    ``(d) Revolving Fund.--
            ``(1) Definitions.--In this subsection:
                    ``(A) Fund.--The term `Fund' means the United 
                States Patent and Trademark Office Innovation Promotion 
                Fund established under paragraph (2).
                    ``(B) Trademark act of 1946.--The term `Trademark 
                Act of 1946' means the Act entitled `An Act to provide 
                for the registration and protection of trademarks used 
                in commerce, to carry out the provisions of certain 
                international conventions, and for other purposes', 
                approved July 5, 1946 (15 U.S.C. 1051 et seq.) 
                (commonly referred to as the `Trademark Act of 1946' or 
                the `Lanham Act').
            ``(2) Establishment.--There is established in the Treasury 
        a revolving fund to be known as the `United States Patent and 
        Trademark Office Innovation Promotion Fund'.
            ``(3) Derivation of resources.--There shall be deposited 
        into the Fund any fees collected under--
                    ``(A) this title; or
                    ``(B) the Trademark Act of 1946.
            ``(4) Expenses.--Amounts deposited into the Fund under 
        paragraph (3) shall be available, without fiscal year 
        limitation, to cover--
                    ``(A) all expenses to the extent consistent with 
                the limitation on the use of fees set forth in 
                subsection (c), including all administrative and 
                operating expenses, determined in the discretion of the 
                Director to be ordinary and reasonable, incurred by the 
                Director for the continued operation of all services, 
                programs, activities, and duties of the Office relating 
                to patents and trademarks, as such services, programs, 
                activities, and duties are described under--
                            ``(i) this title; and
                            ``(ii) the Trademark Act of 1946; and
                    ``(B) all expenses incurred pursuant to any 
                obligation, representation, or other commitment of the 
                Office.'';
            (6) in subsection (e), as so redesignated, by striking 
        ``The Director'' and inserting ``Refunds.-- The Director''; and
            (7) in subsection (f), as so redesignated, by striking 
        ``The Secretary'' and inserting ``Report.-- The Secretary''.
    (b) Effective Date; Transfer From and Termination of Obsolete 
Funds.--
            (1) Effective date.--The amendments made by subsection (a) 
        shall take effect on the first day of the first fiscal year 
        that begins on or after the date of the enactment of this Act.
            (2) Remaining balances.--There shall be deposited in the 
        Fund, on the effective date described in paragraph (1), any 
        available unobligated balances remaining in the Patent and 
        Trademark Office Appropriation Account, and in the Patent and 
        Trademark Fee Reserve Fund established under section 42(c)(2) 
        of title 35, United States Code, as in effect on the day before 
        the effective date.
            (3) Termination of reserve fund.--Upon the payment of all 
        obligated amounts in the Patent and Trademark Fee Reserve Fund 
        under paragraph (2), the Patent and Trademark Fee Reserve Fund 
        shall be terminated.

SEC. 7. PATENTABILITY OF SCIENTIFIC DISCOVERIES AND SOFTWARE 
              INVENTIONS.

    (a) Amendment.--Section 101 of title 35, United States Code, is 
amended to read as follows:
``Sec. 101. Inventions patentable
    ``(a) In General.--Whoever invents or discovers any new and useful 
process, machine, manufacture, or composition of matter, or any new and 
useful improvement thereof, may obtain a patent therefor, subject to 
the conditions and requirements of this title.
    ``(b) Exception.--A claimed invention is ineligible patent subject 
matter under subsection (a) if the claimed invention as a whole, as 
understood by a person having ordinary skill in the art, exists in 
nature independently of and prior to any human activity, or exists 
solely in the human mind.
    ``(c) Eligibility Standard.--The eligibility of a claimed invention 
under subsections (a) and (b) shall be determined without regard as to 
the requirements or conditions of sections 102, 103, and 112 of this 
title, or the claimed invention's inventive concept.''.
    (b) Sense of Congress.--It is the sense of Congress that--
            (1) the Supreme Court's recent jurisprudence concerning 
        subject matter patentability has harmed the progress of science 
        and the useful arts;
            (2) the United States patent system must protect and 
        encourage research and development in such scientific 
        disciplines as would promote the progress of science and the 
        useful arts by securing for limited times to inventors the 
        exclusive rights to their discoveries and provide scientists in 
        the life sciences, computer sciences, and other disciplines, 
        with certainty that their discoveries and inventions are 
        entitled to patent protection; and
            (3) this amendment effectively abrogates Alice Corp. v. CLS 
        Bank International, 573 U.S. 208 (2014), Bilski v. Kappos, 561 
        U.S. 593 (2010), Association for Molecular Pathology v. Myriad 
        Genetics, 569 U.S. 576 (2013), Mayo Collaborative Services v. 
        Prometheus Laboratories, 566 U.S. 66 (2012), and its 
        predecessors to ensure that life sciences discoveries, computer 
        software, and similar inventions and discoveries are 
        patentable, and that those patents are enforceable.

SEC. 8. LIMITATIONS ON PRIOR ART.

    Section 102 of title 35, United States Code, is amended to read as 
follows:
``Sec. 102. Conditions for patentability; novelty
    ``(a) In General.--A person shall be entitled to a patent unless--
            ``(1) the invention was known or used by others in this 
        country, or patented or described in a printed publication in 
        this or a foreign country, before the invention thereof by the 
        applicant for patent;
            ``(2) the invention was patented or described in a printed 
        publication in this or a foreign country or in public use or on 
        sale in this country, more than one year prior to the date of 
        the application for patent in the United States;
            ``(3) he has abandoned the invention;
            ``(4) the invention was first patented or caused to be 
        patented, or was the subject of an inventor's certificate, by 
        the applicant or his legal representatives or assigns in a 
        foreign country prior to the date of the application for patent 
        in this country on an application for patent or inventor's 
        certificate filed more than twelve months before the filing of 
        the application in the United States;
            ``(5) the invention was described in (1) an application for 
        patent, published under section 122(b), by another filed in the 
        United States before the invention by the applicant for patent 
        or (2) a patent granted on an application for patent by another 
        filed in the United States before the invention by the 
        applicant for patent, except that an international application 
        filed under the treaty defined in section 351(a) shall have the 
        effects for the purposes of this subsection of an application 
        filed in the United States only if the international 
        application designated the United States and was published 
        under Article 21(2) of such treaty in the English language;
            ``(6) he did not himself invent the subject matter sought 
        to be patented; or
            ``(7)(A) during the course of an interference conducted 
        under section 135 or section 291, another inventor involved 
        therein establishes, to the extent permitted in section 104, 
        that before such person's invention thereof the invention was 
        made by such other inventor and not abandoned, suppressed, or 
        concealed; or
            ``(B) before such person's invention thereof, the invention 
        was made in this country by another inventor who had not 
        abandoned, suppressed, or concealed it. In determining priority 
        of invention under this subsection, there shall be considered 
        not only the respective dates of conception and reduction to 
        practice of the invention, but also the reasonable diligence of 
        one who was first to conceive and last to reduce to practice, 
        from a time prior to conception by the other.
    ``(b) Disclosures in Patent Applications and Patents.--A disclosure 
shall not be prior art to a claimed invention under this section if 
before the issuance of a patent--
            ``(1) the information disclosed was obtained directly or 
        indirectly from the inventor or a joint inventor;
            ``(2) the information disclosed to the Office or another 
        party during the one-year period prior to the date of the 
        application for patent had, before a patent application for the 
        information was effectively filed, been publicly disclosed by 
        the inventor or a joint inventor; or
            ``(3) the information disclosed and the claimed invention, 
        not later than the effective filing date of the claimed 
        invention, were owned by the same person or subject to an 
        obligation of assignment to the same person.''.

SEC. 9. RESTORING PATENTS AS A PROPERTY RIGHT.

    (a) Private Property Patent Right.--
            (1) Amendment.--Chapter 10 of title 35, United States Code, 
        is amended by adding at the end the following new section:
``Sec. 106. Private property patent right
    ``A patent right is a private property right secured to an inventor 
upon issuance of the patent that shall only be revoked by a court 
ruling in a judicial proceeding, unless the patent owner consents to an 
administrative or other procedure.''.
            (2) Technical and conforming amendment.--The table of 
        sections for chapter 10 of title 35, United States Code, is 
        amended by adding at the end the following new item:

        ``106. Private property patent right.''.
    (b) Ownership; Assignment.--Section 261 of title 35, United States 
Code, is amended--
            (1) in the first sentence, by striking ``patents shall have 
        the attributes of personal property'' and inserting the 
        following: ``patents shall be recognized as private property 
        rights''; and
            (2) by inserting after the second sentence the following:
    ``As private property rights, applications for patents, patents, 
and interests therein shall be freely transferrable, in whole or in 
part, including conveyance by assignment or license. Any successors, 
heirs, assigns, or licensees of a patent owner, who receive a lesser 
interest in a patent, shall be subject to any and all restrictions of 
their interest in the patent, provided that the successors, heirs, 
assigns, or licensees have actual or constructive notice of such 
restrictions.''.
    (c) Sense of Congress.--It is the sense of Congress that--
            (1) recent jurisprudence of the United States Supreme 
        Court, including Oil States Energy Services v. Greene's Energy 
        Group, 138 S. Ct. 1365 (2018), have harmed the progress of 
        science and the useful arts by unconstitutionally changing the 
        treatment of fundamental patent rights to government-bestowed 
        public franchises from the Founders' original intent of 
        exclusive private property rights of limited duration;
            (2) recent jurisprudence of the United States Supreme 
        Court, including Impression Products Inc. v. Lexmark 
        International, Inc., have harmed the progress of science and 
        the useful arts by limiting the ability of patent owners to 
        exclude unlicensed customers from their supply chains; and
            (3) meaningful patent rights must permit patent owners to 
        freely assign their rights in whole, or in part, and to ensure 
        that successors, heirs, or assigns of a patent owner, or their 
        assigns, are duly bound by restrictions or exclusions set by 
        patent owners on the use of their property.

SEC. 10. ENDING AUTOMATIC PUBLICATION OF PATENT APPLICATIONS.

    (a) Amendment.--Section 122(b) of title 35, United States Code, is 
amended to read as follows:
    ``(b) Publication.--
            ``(1) In general.--Each application for a patent shall be 
        published, in accordance with procedures determined by the 
        Director, only upon the request of the patent applicant.
            ``(2) Information released once a patent issues.--No 
        information concerning a patent application shall be available 
        to the public unless and until a patent issues.''.
    (b) Sense of Congress.--It is the sense of Congress that--
            (1) automatic publication of patent applications after 18 
        months has harmed the progress of science and the useful arts 
        by creating ``prior art'' by operation of law that prevents a 
        patent owner from applying for a patent on the same invention 
        if a patent does not issue; and
            (2) automatic publication of patent applications encourages 
        early disclosure of claimed inventions and subjects innovative 
        inventions and discoveries reduced to practice in the United 
        States to theft or appropriation by foreign competitors.

SEC. 11. PRESUMPTION OF VALIDITY; DEFENSES.

    (a) Validity of a Patent in Adjudicatory Proceedings.--Section 
282(a) of title 35, United States Code, is amended to read as follows:
    ``(a) In General.--
            ``(1) Presumption of validity for a patent.--In any 
        judicial or administrative proceeding conducted in any court or 
        Federal agency (as defined in section 201) or of any State, a 
        patent issued under this title shall be presumed valid.
            ``(2) Presumption of validity for claims of a patent.--In 
        any proceeding described under paragraph (1)--
                    ``(A) each claim of a patent (whether in 
                independent, dependent, or multiple dependent form) 
                shall be presumed valid independently of the validity 
                of other claims; and
                    ``(B) dependent or multiple dependent claims shall 
                be presumed valid even though dependent upon an invalid 
                claim.
            ``(3) Burden of establishing invalidity.--In any proceeding 
        described under paragraph (1) in which the validity of a patent 
        is at issue, the burden of establishing invalidity of a patent 
        or any claim thereof rests on the party asserting the 
        invalidity by clear and convincing evidence.''.
    (b) Tolling Patent Term During Judicial Challenge.--Section 282 of 
title 35, United States Code, is amended by adding at the end the 
following:
    ``(d) Tolling of Patent Term During Validity Challenge.--In an 
action involving a patent where the validity of the patent has been 
challenged, the patent term shall be tolled from the time the validity 
of the patent is challenged to the time of resolution of the validity 
issue by the court. The patent term shall resume once the validity 
challenge is resolved. The court may award damages to the patent owner 
in a case in which another party brought a validity claim against the 
patent in bad faith.''.

SEC. 12. INJUNCTION.

    (a) Amendment.--Section 283 of title 35, United States Code, is 
amended--
            (1) by striking ``The'' and inserting the following:
    ``(a) In General.--The''; and
            (2) by adding at the end the following new subsection:
    ``(b) Permanent Injunction.--
            ``(1) In general.--Upon a finding of infringement of a 
        patent, the court shall presume that further infringement of 
        the patent would cause the patent owner irreparable harm. This 
        presumption may be overcome only by a showing of clear and 
        convincing evidence by the infringing party that the patent 
        owner would not be irreparably harmed by further infringement 
        of the patent. The patent owner is not required to make or sell 
        a product covered by the patent to show irreparable harm.
            ``(2) Patent owner defined.--In this subsection, a `patent 
        owner' means the owner of the patent or an exclusive licensee 
        of the patent.''.
    (b) Sense of Congress.--It is the sense of Congress that this 
section abrogates the Supreme Court's ruling in and subsequent lower 
court interpretations of eBay v. MercExchange, 547 U.S. 388 (2006), 
which has been applied as a de facto presumption against granting 
patent owners injunctive relief.

SEC. 13. BEST MODE REQUIREMENT.

    Section 15 of the Leahy-Smith America Invents Act (Public Law 112-
29), including each amendment made by such section, is repealed and any 
provision amended by such section shall be amended to read as in effect 
on the day before the date of the enactment of such Act.
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