WASHINGTON – The Senate Judiciary Subcommittee on Intellectual Property yesterday held a hearing on the STRONGER Patents Act, bipartisan legislation introduced by U.S. Senators Chris Coons (D-Del.), Tom Cotton (R-Ark.), Dick Durbin (D-Ill.), Mazie Hirono (D-Hawaii), John Kennedy (R-La.), and Kevin Cramer (R-N.D.) to protect and support inventors and innovators and ensure that our patent system protects this essential property right. U.S. Representatives Steve Stivers (R-Ohio) and Bill Foster (D-Ill.) are the lead sponsors of the bill in the House of Representatives. At the hearing, Senator Coons delivered the following remarks.

“Supporters of this bill understand that without reliable and enforceable patent rights, inventors, entrepreneurs, and businesses will struggle to finance, to defend, to advocate, to pioneer new technologies. We all depend on these new and disruptive and compelling technologies to fuel our economy, to promote our national security, to save lives, and to make ours the most robust, innovative economy on the planet,” said Senator Coons.

Video and audio available here.

Video and audio of Senator Coons’ Q&A available here.

Senator Coons’ remarks, as delivered:

Thank you, Chairman Tillis. Let me just start by thanking you, both, specifically, for agreeing to hold this hearing on the STRONGER Patents Act, but more broadly for the strong, positive, and constructive relationship we’ve enjoyed. We are the co-chairs of the Human Rights Caucus. Senator Tillis as the chair and I as his ranking on this IP subcommittee, have tackled a number of, I think, important issues in the intellectual property space. You have been a great colleague to work with and I appreciate your diligence, thoroughness, and openness.

We may have some small, but meaningful, areas of disagreement about this particular piece of legislation, and I think the great tool we have available to us as Senators to sort of hash some of that through is to call in experts that are in favor of the bill, who have questions about the bill, or who are opposed to the bill. That's how we sharpen legislative proposals. This is how it should work. We are actually here to hear you, rather than to talk across each other or to race outside and score points on cable. So, thank you, Chairman Tillis, for being a great partner. His staff and mine have worked very well together on putting this together, and I'll make just brief further comments and then we'll get to the hearing.

I initially introduced the STRONG Patents Act, and then the revised STRONGER Patents Act, because I think reliable, enforceable patent rights are the lifeblood of our innovation economy, which is rooted in personal experience in my home state. And I am deeply grateful to my colleagues who are co-sponsors of the STRONGER Patents Act and it's a pretty strikingly broad range, ideologically. Senators Cotton and Hirono, Kennedy and Durbin, Kramer and I, represent – thank you Senator Hirono, I was just thanking you for being a co-sponsor of this bill, and a tireless advocate for inventors and innovation. It also enjoys broad support in the House, but I'll mention Congressmen Stivers and Foster who are leading the bill in the House.

Supporters of this bill understand that, without reliable and enforceable patent rights, inventors, entrepreneurs, and businesses will struggle to finance, to defend, to advocate, to pioneer new technologies. We all depend on these new and disruptive and compelling technologies to fuel our economy, to promote our national security, to save lives, and to make ours the most robust, innovative economy on the planet.

We've seen, I think, over the last decade or more, a steady erosion in patent rights. A patent, although it is a constitutionally created property right, is only meaningful if it can be enforced against infringers. And one of the concerns I had about where we've been since the eBay opinion and some other changes is the weakening of injunctive relief, presumption for injective relief, which I think can effectively reward infringement followed by costly litigation instead of incentivizing upfront, good faith negotiation with patent owners and I look forward to getting competing input on that, what's the right path forward. I think the bill would change that by reestablishing a presumption in favor of an injunction for ongoing infringement of valid patents. 

It would also make other changes. Of course, you talked about, Mr. Chairman, the challenge of repeat challenges at the USPTO and PTAB. Under a lower standard of proof that applies in district courts, we've seen, I think, all too many abuses of attacks of American innovators. For solo invention, this can feel like death by 1,000 cuts, and that's why this would limit the number of times a patent owner should have to defend exactly the same patent claims and I think we can debate whether we've gotten that right in this language or not. But I think for a startup that relies on venture capital, being able to enforce a patent can determine whether or not that startup gets the funding needed to survive, to scale up and to thrive, or whether it dies early.  

I'll just point out one of a number of indices, the [2018] Bloomberg Innovation Index, saw us sharply decline from a number one ranking in 2013 to not even in the top 10, and I think that ought to concern all of us. Our founders, a number of whom were inventors, understood the importance of innovation in the success for our nation and recognized that granting exclusivity for a period of time would encourage inventors to invent and then share the technical underpinnings of those inventions with the public. 

So, I look forward to hearing from the panel today about how restoring a stronger patent system would incentivize and reward innovation, live up to its founding ideals. And if I could, Mr. Chairman, before we begin, I have a collection of statements for the record I would like to submit in support of the STRONGER Patents Act from a diverse group of supporters: The Innovation Alliance, property rights advocates, solo inventors, universities, the National Small Business Association, and several others.  

Thank you, Chairman Tillis, thank you to our witnesses, I look forward to your testimony, and please know that what we will miss, as we run back and forth to vote for or against a whole series of judges, we will make up by reading the transcript. Thank you, Mr. Chairman. 

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