Intellectual property is the lifeblood of the biotechnology industry. Strong patents, and an efficient, predictable, and objective patent system, are critical to ensuring a steady stream of capital to biotechnology companies developing innovative medicines, alternative energy sources, insect- and drought-resistant crops, and a wide range of other innovative biotechnologies that are helping to feed, fuel, and heal our planet. The America Invents Act (AIA), signed into law in September 2011, represents the most comprehensive changes to the U.S. patent system in more than 50 years. One issue Congress continues to consider is an effort to curb abusive litigation in the U.S. patent system. Despite their well-intentioned efforts to curb abuses, proponents of patent litigation reform are pressing for sweeping ideas to remake the patent litigation system in fundamental and untested ways, based on questionable data and without sufficient consideration of the impact of those changes on the vast majority of patent owners and licensees who engage in legitimate and good faith patent licensing, partnering, and enforcement activities. While reining in abuse of the patent system is important, equally important is maintaining the ability of legitimate patent holders to defend and enforce their intellectual property rights.
- BioForward commends the U.S. Patent and Trademark Office (PTO) rule change that went into effect late 2018 that significantly improved the fairness of post-issuance patent challenge proceedings, such as Inter Partes Review (IPR), for patent owner. This change replaces the controversial “broadest reasonable interpretation (BRI) standard-under which a patent being challenged is more likely to be struck down-with the more narrow and reliable claim construction standard used to construe claim terms in federal courts. The action by the PTO will help ensure that patent claims are construed consistently, whether they are reviewed by the PTO, a federal court, or the International Trade Commission. In its final rule, the PTO decided to apply the rule change only prospectively to all patents filed after November 13, 2018.