A Call for Congressional Action: The Pro-Patent Push
PERA, PREVAIL, and RESTORE
A recent opinion piece in the Washington Examiner serves as a forceful piece of advocacy, urging Congress to pass significant, pro-patent-holder legislation. The article, “A call to Congress: Strengthen America by strengthening patents,” contends that legislative action is not merely an administrative update but a matter of national security, particularly in a “cold war of innovation” with China (¶ 4).
This is not a neutral report but a targeted persuasive effort. The author, James Edwards, is the executive director of Conservatives for Property Rights, an organization that advocates for strengthening IP rights. The article’s goal is to directly pressure lawmakers, particularly Republicans, to pass a specific legislative agenda. These measures would push the pendulum even further towards a pro-patent swing.
Patents as “Instruments of War”
The article highlights recent testimony from USPTO Director John Squires, who characterized innovation as “our best weapon and inexhaustible resource” (Call to Congress, ¶ 3). This narrative recasts patents as “instruments of that war,” essential tools for prevailing in a global “soft-power war” (¶ 3).
This framing is a deliberate rhetorical strategy to create urgency. It links the health of the U.S. patent system to its ability to counteract the strategies of economic rivals.
Edwards notes that while China has historically siphoned U.S. technology, it has also “systematically replicated key features of our patent system” to build its own tech economy (¶ 4). The clear implication is that any self-inflicted weakness in the U.S. system is a strategic blunder.
The Advocacy Agenda: Identifying Weaknesses
For patent practitioners and IP owners, the list of grievances cited by Edwards is familiar and forms the core of his organization’s advocacy. He points to several developments over the past two decades as having “weakened our patent system and faith in our patent system” (¶ 5):
Injunction Denial: The Supreme Court’s 2006 eBay v. MercExchange decision, which Edwards claims led to a “virtual uniform denial of injunctions” (¶ 5).
The PTAB: The America Invents Act of 2011 (AIA) introduced the Patent Trial and Appeal Board (PTAB), which Edwards asserts “has become a weapon for predatory infringers” (¶ 5).
Eligibility Uncertainty: Vague court rulings on patent eligibility—a clear reference to the Alice/Mayo framework—have left inventors and, more critically, investors “uncertain about whether their life’s work merits patent protection” (¶ 6).
The Legislative “Cure”
The article identifies a trio of bipartisan bills as the remedy: the PERA, PREVAIL, and RESTORE Patent Rights Acts. Edwards notes that while these bills stalled previously, momentum is building, with hearings and markups expected (¶ 7).
The central message is a direct appeal to Congress to pass these measures, arguing that the administration, through its USPTO leadership, has signaled its full support. Director Squires is quoted as stating, “Patent eligibility is not an abstract debate. It is a matter of national security...” (¶ 9).
Analysis and Considerations
This strong push for legislative reform, amplified by national security rhetoric, presents a complex picture for IP professionals. The Examiner article is advocating for a significant recalibration of patent law.
For patent owners and inventors, the agenda Edwards supports could be highly beneficial.
The RESTORE Act aims to re-establish a presumption of injunctive relief, directly addressing the eBay grievance and giving patent holders significantly more leverage.
The PREVAIL Act seeks to reform the PTAB by, among other things, raising the burden of proof for invalidation and limiting repetitive challenges—directly targeting the complaint that the PTAB is a “weapon” for infringers.
The PERA Act seeks to legislatively “fix” patent eligibility, overriding the Alice/Mayo framework to protect innovations in software, AI, and diagnostics.
This optimistic outlook must be balanced with caution. The PTAB was created to address a perceived problem of low-quality patents being used aggressively. In-house counsel at companies frequently targeted by patent assertions may view the PTAB as a necessary, cost-effective tool. A dramatic weakening of the PTAB, as envisioned by PREVAIL, could see a return to more expensive, protracted district court litigation as the primary means of challenging patent validity.
Furthermore, while the “national security” framing is politically potent, it carries risks. Overly broad patent eligibility standards, which PERA might introduce, could lead to a proliferation of patents on abstract business methods or software concepts, potentially stifling, rather than promoting, innovation.
Conclusion
The Washington Examiner article is a clear signal of a coordinated advocacy campaign, one that has found alignment with new USPTO leadership. For many patent owners and inventors, the proposed reforms—PERA, PREVAIL, and RESTORE—are viewed as a welcome and necessary corrective to strengthen intellectual property rights.
However, this push also raises significant concerns. A policy shift that broadens eligibility and makes patents harder to challenge could embolden patent assertion entities, leading to a rise in litigation against operating companies.
Many long-time observers of the IP system recognize this tension as part of a familiar pattern. Patent policy is often described as a pendulum, swinging over the decades between periods that favor strengthening patent-holder rights and periods that focus on curbing enforcement abuses. The current legislative effort—along with the new USPTO policy positions—strongly suggests the pendulum is swinging back toward a more patent-centric position.
Given the apparent bipartisan support for these bills, IP professionals should monitor their progress closely. Their passage would directly and significantly impact patent valuation, litigation strategy, and investment in technology.
That said, IP stakeholders have seen similar bills and heard similar rumors on the Hill for years.
Disclaimer: This is provided for informational purposes only and does not constitute legal or financial advice. To the extent there are any opinions in this article, they are the author’s alone and do not represent the beliefs of his firm or clients. The strategies expressed are purely speculation based on publicly available information. The information expressed is subject to change at any time and should be checked for completeness, accuracy and current applicability. For advice, consult a suitably licensed attorney and/or patent professional.