By Judge Kathleen O’Malley
A bipartisan consensus is quietly emerging in Washington. Lawmakers from both parties are working with each other and the White House to modernize America’s intellectual property system.
The Patent Eligibility Restoration Act, introduced on May 1, would fix a series of U.S. Supreme Court decisions that cast doubt on the eligibility of certain artificial intelligence, medical diagnostics and biotechnology innovations, among others.
This legal uncertainty discourages investment in cutting-edge research.
PERA would fix this by establishing clear standards for what can and cannot be patented, ensuring that transformative technologies are not unfairly excluded from protection.
The RESTORE Patent Rights Act, introduced on Feb. 25, would effectively overturn an ill-conceived Supreme Court ruling that made it difficult for inventors to stop unauthorized use of their patented ideas and designs.
For most of American history, inventors whose patented ideas had been stolen could seek an injunction — a court order legally barring the infringing company from selling products that contained the stolen technology.
But in 2006, the Supreme Court’s decision in eBay Inc. v. MercExchange severely limited inventors’ ability to obtain injunctions. Opportunistic infringers soon realized they could steal a patented technology, incorporate it into a cutting-edge product, and then produce and sell the product for their own profit.
Now, infringers know that even if the true inventor sues, an injunction is unlikely, and it will take years for the case to wind through the courts. By that time, the damage will already be done. The thief will have cornered the market — and the inventor will have permanently lost out on customers and revenue.
The RESTORE Patent Rights Act would enable inventors to once again reliably obtain injunctions that block infringers from using stolen patents, ensuring justice in the U.S. patent system and giving inventors a chance to protect and scale their groundbreaking technologies.
The PREVAIL Act, introduced on May 1, would close loopholes that enable duplicative patent validity challenges — thereby ensuring that small businesses do not have to defend their patents in two different forums at once. That will reduce their spending on expensive litigation and allow them to pour those resources into cutting-edge research instead.
These bipartisan bills would all strengthen America’s economy. But Congress should not stop there.
American innovators face persistent challenges from foreign actors, particularly China. The Chinese Communist Party has been credibly accused of subsidizing mass patent and trademark filings, both to exaggerate the scale of Chinese innovation and bog down American patent and trademark examiners.
In response, Congress could enact stronger transparency measures, requiring disclosure of foreign government support for patent and trademark applications.
Lawmakers also have an important role to play in setting policies around artificial intelligence, one of the most transformative technologies of our time, but one that presents new challenges for intellectual property law. For example, how can we ensure that AI respects existing copyrights while fostering innovation? A balanced approach would protect human creators while allowing AI to drive progress.
If Congress follows through, the next generation of inventors will not have to fight an uphill battle against corporate giants or foreign competitors rigging the system. Instead, they will have a fair shot to turn big ideas into world-changing breakthroughs.
Kathleen O’Malley served on the United States Court of Appeals for the Federal Circuit from 2010 to 2022 and the U.S. District Court for the Northern District of Ohio from 1994 to 2010. She is a board member of the Council for Innovation Promotion.
