Statement Of Senator Patrick Leahy, Chair, Intellectual Property Subcommittee, On The Supreme Court’s Decision In Arthrex

Ten years ago, Congress enacted the Leahy-Smith America Invents Act, which gave the Patent Trial and Appeal Board (PTAB) the necessary authority to curb the abuse of poor-quality patents.  Patents are one of the core engines of our American economy.  High-quality patents are essential to American innovation, creating jobs and boosting economic output, while poor-quality patents have the opposite effect, depriving Americans of new inventions and miring small businesses in needless litigation.  The Leahy-Smith Act has allowed the PTAB to take a second look at hundreds of patents per year, issuing impartial and fair decisions faster and at a fraction of the expense of other venues. 

Without the PTAB, inventors would also miss out on the opportunity for a second look at examiners’ rejections of their patent applications.  Everyone wants the PTAB to continue doing its important work.  I respect the Supreme Court’s decision today on the PTAB judges’ appointments in the Arthrex case and am confident that the U.S. Patent and Trademark Office (PTO) and the PTAB will continue to be able to perform the duties Congress tasked them with under the Leahy-Smith Act.

Today’s decision underscores the importance of the Administration’s choice for the next PTO Director, given that the Director will have input in many judgments under the Leahy-Smith Act going forward.  It is critical that the next Director respect the law, including statutory bounds set by Congress.  The last Administration took steps to undermine the Leahy-Smith Act by acting outside of those statutory bounds. 

It is also important that the next Director transparently and openly indicate when the Director has intervened and changed any final decision of the PTAB so the public will know if political influence may be a factor at play.  While subject to the direction of the PTO Director, the PTAB should maintain its core independence to decide patent questions without the public having to fear behind-the-scenes political meddling in PTAB decisions.  Whether an invention is patentable should not depend on who is President or who is head of the PTO.

Even more so after today’s decision, as Chair of the Intellectual Property Subcommittee I look forward to supporting a nominee for PTO Director who shares my view that it is important to weed out poor quality patents and avoid their potential for abuse, while at the same time reinforcing the core protections provided to high quality patents that drive America’s unparalleled innovation.

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