If you are in the DC area, please attend. If you cannot attend in person, please watch online. 

Reforming the Patent Trial and Appeal Board – The PREVAIL Act and Proposals to Promote U.S. Innovation Leadership

This appears to be a Sham Hearing. The panel of witnesses is stacked in favor of approving PREVAIL. Witnesses include:  

• Lamar Smith, whose name is on the Leahy-Smith America Invents Act (AIA). 
• Joe Matal was the most senior lawyer on the Senate Judiciary Committee that passed the AIA.
• Michelle Armond is a lawyer who makes her living at the PTAB.
• Joe Kiani is the CEO of Masimo. Masimo has suffered at the PTAB. However, it is a multibillion-dollar publicly traded company with enough resources and patents to survive the PTAB. 

Where are the voices of small inventors and businesses? 

The one-sided nature of the witnesses makes the hearing look like a Sham Hearing intended to rubber stamp PREVAIL. Depending on the outcome of the hearing, we may have a call to action to show opposition to PREVAIL and to the process. Stay tuned for more information.

Abbreviated Process of Passing Law.

Hearings are all but required to pass legislation, so this hearing represents a significant advance to passing PREVAIL. In a typical process, there is a hearing followed by a Markup. In Markup, members of the committee offer amendments, and the committee votes up or down on the amendments. The process is more complicated, but once the amendments are approved, the remaining bill goes to the floor for a vote. Amendments made in Markup often kill the bill or radically change its meaning. So, for those trying to railroad legislation through Congress, avoiding Markup is essential.

What Sham Hearings Mean.

To avoid a Markup, a bill can become an amendment to another must-pass legislation like the omnibus spending bill or the National Defense Authorization Act (NDAA). This was attempted last session for several bad bills pushed by former Senator Leahy. For a piece of legislation to become an amendment, it must be noncontroversial, and it cannot have any cost. Since changing the rules at the PTAB does not influence government spending, it passes that leg. However, whether it is controversial is another question. We may need to answer that question with an all-hands call to action. We don’t know what Joe Kiani’s position will be. He could pull this out of the ditch. So, we will wait to see what transpires on Wednesday before we act. 

Please watch your email for a call to action by the end of the week if the hearing does not go well.