A Holiday Message from C4IP
As December draws to a close, we wish you and yours a very happy holiday season and a wonderful New Year! We look forward to a productive 2025, and we thank you for your continued interest in — and support for — the Council for Innovation Promotion.
December Highlights: Advancing the RESTORE Patent Rights Act
The bipartisan RESTORE Patent Rights Act, introduced in July by a bipartisan group of senators and representatives led by Senators Chris Coons (D-DE) and Tom Cotton (R-AR) in the Senate, and Representatives Nathaniel Moran (R-TX), Madeleine Dean (D-PA), and Hank Johnson (D-GA) in the House, is poised to solve one of the largest IP-related issues facing innovators today: lack of access to injunctive relief. Injunctions, which are court orders that prohibit patent infringers from continuing to utilize stolen technology, are historically how inventors have been able to enforce their exclusive patent rights. Yet in recent years following the 2006 Supreme Court decision in eBay v. MercExchange, the issuance of injunctions has been widely replaced by monetary damages — allowing many wealthy companies to infringe patents with impunity. RESTORE would reestablish injunctions as the default legal remedy for patent infringement to solve this problem and empower small innovators.
On December 18, the Senate Judiciary Committee held a hearing on “The RESTORE Patent Rights Act: Restoring America’s Status as the Global IP Leader.” C4IP voiced its strong support for this important bill in advance of the hearing:
- C4IP Executive Director Frank Cullen sent a letter to the Senate Judiciary Committee explaining how the restoration of injunctive relief through the RESTORE Patent Rights Act would benefit small inventors and America’s broader innovation ecosystem.
Read It Now: “C4IP Letter to Senate Judiciary IP Subcommittee on the RESTORE Patent Rights Act”
- You can find additional resources on the RESTORE Patent Rights Act below:
Additional Coalition Updates
- On January 27, C4IP Co-Chair David Kappos and C4IP Board Member Judge Paul Michel (ret.) will participate in an IPWatchdog discussion focused on the PREVAIL Act and what PTAB proceedings might look like under the leadership of the second Trump administration.
- On December 17, C4IP Executive Director Frank Cullen sent a letter to the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet in advance of their December 18, 2024, hearing entitled “IP and Strategic Competition with China: Part IV — Patents, Standards, and Lawfare.” The letter emphasized the importance of properly valuing standard-essential patents (SEPs) — and rejecting regulations that stifle SEP innovation.
- On December 15, Chairman and Editor-in-Chief of Forbes Media Steve Forbes published an opinion essay in Forbes arguing that for the United States to remain a global leader in innovation, the incoming Trump administration needs to appoint a visionary leader who understands the importance of nurturing startups and disruptive technologies.
- On December 12, C4IP Co-Chair Andrei Iancu discussed the future of innovation in the United States under the new administration during a Hudson Institute event entitled “What’s Ahead for Innovators and Creators in the New Trump Administration?”
- On December 9, C4IP Co-Chair David Kappos and C4IP Board Member Judge Paul Michel (ret.) spoke on the most important IP and innovation policy issues related to biopharmaceuticals during an EIRA Launch Webinar entitled “Engines of Innovation: The Critical Functions of Intellectual Property in the Biopharmaceutical Ecosystem.”
- On December 9, C4IP Co-Chair Andrei Iancu appeared on an episode of 2 Mikes Live, a politics and current events podcast, where he discussed the importance of IP rights to U.S. innovation and the threat posed by Chinese patent theft.
- On December 5, C4IP Executive Director Frank Cullen was interviewed about the dangers of counterfeits by Eyewitness News 3 in Hartford, Connecticut, as part of a news story about a local family that was harmed by a counterfeit product.
- On December 4, C4IP Board Member Judge Paul Michel (ret.) published an opinion essay in the DC Journal responding to the Senate Judiciary Committee’s approval of the PREVAIL Act and urging Congress to pass this bill to protect small innovators.
“Passing the PREVAIL Act would help inventors and small businesses defend their rights — and show that, even after a divisive election, Democrats and Republicans can come together to make the system work better for ordinary Americans.”
- On December 3, CSIS hosted a hybrid event on the role of intellectual property in innovation and geopolitical competition. The event featured a discussion with Rep. Nathaniel Moran (R-TX), moderated by C4IP Co-Chair Andrei Iancu.
- On December 3, C4IP issued a statement applauding the USPTO’s decision to withdraw a proposed rule that would have imposed a burdensome new requirement for filing terminal disclaimers.
- C4IP’s statement was mentioned in articles in IPWatchdog and Law360 covering the decision and the IP community’s reaction.
Government Rundown
House Judiciary Committee Hearing: “IP and Strategic Competition with China: Part IV — Patents, Standards, and Lawfare”:
On December 18, the House Committee on the Judiciary held a hearing to discuss regulation on standard-essential patents, or SEPs. (House Judiciary Committee, 12/18)
Senate Judiciary Committee Hearing: “The RESTORE Patent Rights Act: Restoring America’s Status as the Global IP Leader”:
On December 18, the Senate Committee on the Judiciary held a hearing on the proposed RESTORE Patent Rights Act, a long-awaited reform to restore injunctive relief for inventors. (Senate Judiciary Committee, 12/18)
Bipartisan House Task Force Report on Artificial Intelligence:
On December 17, the Bipartisan Artificial Intelligence Task Force released a comprehensive report addressing both the opportunities and challenges posed by AI. Notably, the report includes a detailed section on IP issues (starting on page 111) which examines: “IP Rights, AI Outputs, and AI-Assisted Innovations and Creative Works,” “Transparency of AI Inputs and Outputs,” “Abuse of Identity-Based Rights by AI-Generated Digital Replicas,” “Legal Clarity,” and “Anticipatory Regulation.” (Bipartisan Artificial Intelligence Task Force, 12/17)
USPTO Event: 18th Annual USPTO-GIPC IP Attaché Roundtable:
On December 10, the USPTO and the U.S. Chamber of Commerce’s Global Innovation Policy Center (GIPC) held their 18th annual joint roundtable to discuss recent developments and challenges in IP. Hosted in Washington, DC, the event featured presentations from the USPTO’s IP attachés, who advocate for strong IP rights in foreign countries. (USPTO, 12/10)
House Financial Services Committee Hearing: Innovation Revolution: How Technology is Shaping the Future of Finance:
On December 4, the House Committee on Financial Services held a hearing to discuss the impact of innovation and emerging technologies on America’s financial sector. The committee heard witness testimony from the heads of the Stellar Development Foundation, AngelList, Anchorage Digital, Carta, and EPIC, and considered a bill that would study the use of AI in financial markets. (House Financial Services Committee, 12/4)
Fact Check
PERA and PREVAIL have continued to face attacks from anti-patent groups as Congress works to pass these bills before the end of the year. One recent example is an article published by the Electronic Frontier Foundation (EFF), which argues that PERA and PREVAIL would “make the patent system even worse” and “foster more patent abuse.” However, the article’s explanations of the bills’ alleged flaws reveal a fundamental misunderstanding of the reforms they would make — and its underlying assumption that the patent system is plagued with low-quality patents is not grounded in evidence.
In reality, PERA and PREVAIL would make simple yet important improvements to the patent system to promote innovation and provide consumers access to more groundbreaking technologies:
| Claim: PERA would make patentable any ‘idea’ that relies on the use of technology, even if it does not constitute an improvement to the technology. |
| In reality: The terms “patentable” and “patent eligible” should not be conflated. Eligibility is a general test that identifies broad categories of inventions — processes, machines, articles of manufacture, and compositions of matter — as potentially able to receive a patent. To actually receive a patent — to be “patentable” — an invention must also meet several more granular and refined requirements, such as being novel and non-obvious. PERA would restore patent eligibility for some types of inventions, but it does not dictate what can be patented, nor would it make any idea patentable. Under PERA, inventions must still meet the other statutory requirements. Moreover, ideas would not even be eligible for patenting under PERA — the bill’s text states that “mental process[es] performed in the mind of a human being” are outside the bounds of eligibility. |
| Claim: Passing PREVAIL “would sell out the public interest to a narrow group of patent holders.” |
| In reality: Far from being a reform that would enrich a few patent-holding companies at the public’s expense, PREVAIL would ensure an equal playing field for the many small and independent inventors competing against large incumbents — and would benefit the general public by fostering innovation. Currently, the rules of the Patent Trial and Appeal Board (PTAB), which allow repeated and duplicative patent invalidation challenges, advantage large, deep-pocketed companies, which can overwhelm their smaller competitors with costly litigation. Consequently, the board has become a favored venue among corporations seeking to stifle competition: The top 20 users of the PTAB from 2012-2023 are overwhelmingly members of Big Tech. PREVAIL would make common-sense reforms, such as banning repeated petitions, in order to eliminate this imbalance. By empowering small companies and inventors to stand their ground against abusive litigation, it would strengthen trust in the patent system and foster “little tech” innovation that benefits consumers. |
| Claim: The U.S. patent system needs to do better at “eliminating patents that never should have been granted in the first place.” |
| In reality: The common narrative that the United States has a problem with low-quality patents was thoroughly debunked by a recent study from the nonpartisan Sunwater Institute. The study used three separate methods to determine the rate at which the USPTO erroneously grants patents that do not meet statutory requirements. It found that the overall quality of patents was very high and that the USPTO did better at weeding out low-quality patents than its counterparts in Japan, Korea, and the European Union. By contrast, the USPTO’s rejections of valid patents were a more significant problem, according to the study: Nearly one in every five denied claims should have instead been granted. The denial of patent protection to these legitimate inventions stunts U.S. innovation and threatens both our economy and national security. Implementing new restrictions on patenting in order to block “bad patents” would not only be unnecessary, but would likely exacerbate the more common problem of wrongful patent denials. |
Additional resources on PERA and PREVAIL.
Celebrating American Innovation
Inventor Spotlight
This month, C4IP is recognizing William Kroll, who revolutionized America’s high-tech industries by making mass production of titanium possible.
- Kroll was born in Luxembourg in 1889 and studied engineering in Germany before returning to his home country and inventing a process to produce pure titanium, a strong yet lightweight metal that had previously been difficult to obtain.
- He fled to the United States shortly before the Nazi invasion of Luxembourg and applied his expertise as a metallurgist for the U.S. Bureau of Mines during World War II.
- In the United States, Kroll improved and patented his titanium production process, later dubbed the “Kroll process.”
- He filed over 50 patents over the course of his career.
- Kroll’s invention fueled rapid progress in several high-tech industries, including aerospace, construction, and medical devices, and is considered a strategic resource for national defense.
- Today, titanium is used in numerous products and technologies, from surgical implants to jewelry to sporting equipment.
- The Kroll process remains the primary method used for producing titanium metal — powering a global market that is projected to reach a value of over $50 billion in the next decade.
(Photo credit: National Inventors Hall of Fame)
What’s Happening in Congress
As Democratic and Republican members of Congress continue to weigh legislative priorities during the 118th Congress, top of mind for those who follow intellectual property policy are:
The Realizing Engineering, Science, and Technology Opportunities by Restoring Exclusive (RESTORE) Patent Rights Act: In July 2024, Senators Chris Coons (D-DE) and Tom Cotton (R-AR), and Representatives Nathaniel Moran (R-TX), Madeleine Dean (D-PA), and Hank Johnson (D-GA) introduced legislation that aims to realign patent law with the U.S. Constitution and the Patent Act’s promise of “exclusive rights” to inventors. This bipartisan bill seeks to restore injunctive relief – court orders that stop infringers from utilizing patented technology – in response to the Supreme Court’s 2006 eBay v. MercExchange. That ruling substantially curtailed the granting of such injunctions, undermining the exclusive rights set forth in the U.S. Constitution to many inventors. C4IP strongly supports this legislation, viewing it as a pivotal moment for American innovation.
The Promoting and Respecting Economically Vital American Innovation Leadership (PREVAIL) Act: In July 2023, Senators Chris Coons (D-DE), Thom Tillis (R-NC), Dick Durbin (D-IL), and Mazie Hirono (D-HI) – joined by Deborah Ross (D-NC), and later cosponsored by Nathaniel Moran (R-TX), on the House side – introduced legislation that will eliminate redundant patent invalidity challenges and safeguard Americans’ right to participate in a fair and accessible patent system. The PREVAIL Act contains important reforms to the Patent Trial and Appeal Board, which will return the body to its original purpose of providing an efficient alternative to district court litigation, and will curtail the practice by patent infringers of forcing inventors to defend their patents repeatedly and in multiple fora. In November 2024, the Senate Judiciary Committee voted to advance this bill to the Senate.
The Patent Eligibility Restoration Act of 2023: In June 2023, Senators Thom Tillis (R-NC) and Chris Coons (D-DE) reintroduced legislation aimed at restoring patent eligibility for important categories of inventions – including life sciences diagnostics, gene therapies, and computer-implemented inventions – as well as resolving questions regarding the scope of patent eligibility. In so doing, the Patent Eligibility Restoration Act will foster the development of next-generation technologies across innovative industries. Representatives Kevin Kiley (R-CA) and Scott Peters (D-CA) introduced the House companion to this bill in September 2024.
The Inventor Diversity for Economic Advancement (IDEA) Act of 2024: In September 2024, Senators Mazie Hirono (D-HI) and Thom Tillis (R-NC), alongside Representatives Nydia Velázquez (D-NY) and Young Kim (R-CA), reintroduced legislation that would direct the U.S. Patent and Trademark Office to collect demographic information from patent applicants on a voluntary basis. This data would provide clarity on current demographic gaps in patenting and could inform future reforms intended to help currently underrepresented communities, such as women and racial minorities, participate fully in the patent system. By helping ensure equitable access to intellectual property protections, the IDEA Act would help America harness the innovative talents of all its citizens, spurring economic growth and technological advancement. In November 2024, the Senate Judiciary Committee voted to advance this bill to the Senate.
The Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act of 2024: In August 2024, Senators Chris Coons (D-DE) and Thom Tillis (R-NC), along with Senators Amy Klobuchar (D-MN) and Marsha Blackburn (R-TN), introduced bipartisan legislation intended to protect all individuals from having their voice and visual likeness copied by generative AI without consent. The bill would ensure that entities that produce or share a non-consensual digital replica of another person’s image or voice, such as an AI-generated “deepfake,” can be held liable for damages. It also provides a mechanism to hold platforms hosting user-generated content liable for the same, if they do not remove such unauthorized material after receiving notice. By safeguarding all individuals from exploitation, this legislation would ensure that music, videos, and other forms of content feature only individuals who agree to it, strengthening the rights of artists and actors, and preventing the exploitation of them and everyone else.
The Stopping Harmful Offers on Platforms by Screening Against Fakes in E-Commerce (SHOP SAFE) Act: In September 2023, Senators Chris Coons (D-DE) and Thom Tillis (R-NC) introduced legislation designed to protect online consumers from harmful counterfeit products. By establishing trademark infringement liability for e-commerce platforms that allow the sale of dangerous counterfeit items, requiring brand owners to notify platforms of their mark(s) in advance, and providing safety from liability to platforms that appropriately vet and remove counterfeit sellers, the SHOP SAFE Act will protect American families as well as businesses and IP holders. Representatives Darrell Issa (R-CA), Jerry Nadler (D-NY), Ben Cline (R-VA), and Hank Johnson (D-GA) introduced the House companion to this bill in June 2024.
The Medication Affordability and Patent Integrity Act: In September 2023, Senators Maggie Hassan (D-NH) and Mike Braun (R-IN) introduced legislation that would require life sciences innovators to disclose vast amounts of confidential data to the USPTO. In addition, firms would also have to provide lengthy certifications stating that all information submitted to the FDA and USPTO is consistent. Proponents of the bill argue that such disclosures would help prevent drug companies from manipulating the patent system, keep weak patents from being issued, and lower drug costs for patients. However, there is no evidence that these problems exist. Rather than benefit patients, the requirements imposed by this bill would likely compromise the confidentiality of trade secrets and make it easier for companies to have their competitors’ patents invalidated. It would also drain USPTO resources and make the drug approval process even more burdensome for innovative companies. Due to these problems, as well as the lack of empirical support for the bill, C4IP opposes this legislation.
The Prohibiting Adversarial Patents (PAPA) Act: In September 2023, Representatives Scott Fitzgerald (R-WI), Mike Gallagher (R-WI), Darrell Issa (R-CA), and Blaine Luetkemeyer (R-MO) introduced legislation that raises a number of concerns. With the well-intended goal of protecting U.S. national security, the PAPA Act has the potential to trigger significant unintended consequences. These include potential retaliatory moves by China and other nations to suspend or render unenforceable patents owned by American companies, further enabling the theft of American IP overseas. The actions called for by the bill may well violate U.S. treaty obligations, which would, in turn, embolden other nations to violate IP-related treaties in various ways. In addition, confiscating patents, or rendering them unenforceable, violates basic principles of property and, therefore, could weaken the concept of patents as property rights. These and other considerations are of the utmost importance as U.S. lawmakers study the full scope of the PAPA Act. C4IP stands ready to work with Members of Congress to address the threat posed by foreign entities while maintaining the integrity of the U.S. patent system.
The Improving Efficiency to Increase Competition Act: In January 2024, Senators Thom Tillis (R-NC) and Chris Coons (D-DE) introduced legislation intended to reduce the administrative burden on universities and other institutions that receive federal research grants so that they can focus more intently on producing new innovations. Specifically, the legislation would direct the Government Accountability Office (GAO) to conduct a study on intellectual property reporting requirements under the Bayh-Dole Act, which vary between federal agencies. Such a study will offer important insights into how the government can make the reporting process more efficient and remove barriers that may have inhibited the development of new inventions.
The Interagency Patent Coordination and Improvement Act of 2023: In January 2023, Senators Dick Durbin (D-IL), Chris Coons (D-DE), Thom Tillis (R-NC), and Chuck Grassley (R-IA) introduced the Interagency Patent Coordination and Improvement Act of 2023. The bill would create an interagency task force to share patent filing information and technical assistance between USPTO and FDA officials. IP experts warn that interagency entanglement could weaken the patent system by inserting officials from multiple federal agencies – without patent law expertise – into the examination process. They submit that it is premature to implement such substantial changes without conducting a thorough evidence-based study.