What happens to IP law in 2014?
|Written by Robert L. Stoll
Former Commissioner for Patents, USPTO
Posted: January 2, 2014 @ 4:49 pm
It’s 2014, and an angel calls me “grandpa”! What happened to that teenage kid in the mirror — and who is the old man staring back at me? Well, at least the acne is gone. Enough on the personal horrors of aging (which are way worse than any Hollywood syfy). What happens to IP law in 2014?
Near the end of 2013, the Supreme Court granted cert in CLS Bank v. Alice on issues related to software patentability, and many expect that the sagacious Justices will clarify the confusion they created about patent eligibility in earlier decisions, like Prometheus, that were amplified in the splintered en banc panel on CLS Bank at the Federal Circuit. I prophesy that the best we can hope for is a Bilski-esque vague instruction (wherein our top court opined that some business methods are patentable, citing the machine or transformation test as one viable test, without pointing to other valid tests and without enlightening the confused public.)
The Court is once again likely to limit software patentability in some arcane way that harms job creation and stifles economic growth. The bright side is that the Court’s failure to protect our largest growth industries may help spur the legislative branch into further action. A decade of intermittent patent reforms has created a permanent cadre of patent lobbyists very willing to focus their considerable efforts and talents on a new patent issue. It would be advantageous to the patent system if that attention were productively channeled to specifically include our emerging technologies in our patent statutes, and to legislate patent eligibility in a manner that treats 101 as the broad filter it was intended to be, while employing the other patent statutes, such as 112 and 103, to correctly provide the narrower filters.
Speaking of patent reform, I predict we will see some form of it enacted this year! The momentum of a 325-91 passage in the House in December will translate into a touted troll-crushing response from the Senate, which might slightly affect the troll business models, and hopefully won’t negatively affect the patent system as a whole in the realm of unintended consequences. All bets on passage are off if expansion of the newly enacted covered business method provisions to include software finds its way back into the legislation. Frankly, our pugilistic Hill dwellers would do better to legislate what constitutes a bad action than to demonize the actor; and to recognize that they have the power to fix much of the problem by allowing the USPTO full access to its funds to do a better job of examining patent applications and weeding out bad claims earlier in the process.
The Obama Administration is likely to nominate a Director for the USPTO in early 2014, finally! I do not know why it has taken so long, but it speaks volumes about the disinterest or disinclination of the unelected and unconfirmed politicals in the White House to get political leadership at the USPTO in place. I hope our eventual nominee is educated in the importance of strong IP for economic growth and job creation. In the interim, I am pleased that Michelle Lee has been appointed as Deputy. (I only wish they would have done so in a manner that comforted Hal Wegner). She is credentialed and could be a convincing voice at the IP table. Further Administration selections give me hope for a more balanced approach to patent issues in 2014. Jeffrey Zients has been selected to head the National Economic Council and John Podesta will be joining Obama’s inner circle for a year as a White House Counselor. Both are steeped in patent policy. I also believe that the eventual nominee for the IP czar will know the copyright and trademark industries very well.
Another IP prediction is that Congress will grant fast-track to the Trans-Pacific Partnership (TPP). It won’t be easy and it won’t be pretty, and changes will be needed to the current text. We only learned about the TPP IP Chapter through an Edward Snowden leak. WOW, has IP come of age! My trade friends tell me you can’t negotiate a treaty like this in the open. Really? You can’t get information from the public, choose and defend a direction and produce a reasonable compromise text? Instead you get input from a group you select and ignore other voices. So much for governmental transparency. But, the TPP is important and has the strong backing of industry, so after a significant “mea culpa” dance to the Hill and some tweaking around the edges, I think the negotiators will get fast-track.
My last IP prediction is that at this time next year, some new intellectual property issue will be roiling the IP troops and new terms or definitions will be entering our lexicon. The field is exciting, growing and taking on new importance, and I am glad to be a part of it.
Happy New Year to all!- - - - - - - - -
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About the AuthorRobert L. Stoll is a partner on DrinkerBiddle's Patent team and co-chair of the Intellectual Property Practice Group. Bob retired from the USPTO as Commissioner for Patents at the end of 2011 after a distinguished 34-year government career. He was instrumental in the passage of landmark patent legislation, the America Invents Act, and lauded for his efforts to reduce patent pendency and improve patent quality. Bob was the 2012 recipient of Managing Intellectual Property magazine’s lifetime achievement in intellectual property award. He is currently serving a three-year term as a member of the Federal Circuit Advisory Council.