Posts Tagged: "Patent Reform"

In their recent TC Heartland decision, SCOTUS created unequal protection against patent infringers based on geographical incorporation decisions. They added uncertainty in time, cost, and outcome in patent litigation. Standardized local rules and demand letter reform at the federal level would help mitigate this unfortunate situation… Unless Congress acts to change venue laws, patent owners are now severely restricted in the choice of venue. And, if proposed legislation like S.2733 and the corresponding portion of H.R.9 are any indication, action by Congress may not change much regarding venue. So for now, patent owners must live with the restrictions resulting from TC Heartland.

This comprehensive legislation is exactly what is needed to strengthen our patent system, which will promote American innovation, competitiveness and job creation. For roughly a decade now, we have seen a steady weakening of patent rights in the U.S., undermining the ability of inventors to protect their innovations from infringement from large corporations and foreign entities. The STRONGER Patents Act says ‘enough is enough’ and ensures that patent rights are protected as a fundamental underpinning of our innovation economy.  

The true agenda of those who support further reform of the U.S. patent system is as follows: to discriminate against entities which license technologies instead of manufacture; to increase the costs of asserting patent rights to the detriment of individuals and startups; and to stilt the conversations surrounding tech licensing in favor of the infringer bringing a product to market. “If you trip over our patent, you’re a thief. If we trip over your patent, you’re a troll,” Giancarlo said… “Let’s call patent reform for what it is: a blatant economic and power grab by tech firms to infringe on technology created by others,” Giancarlo said. In his opinion, the true trolls are the entities trolling Congress to get a competitive advantage over smaller entities.

Under the current PTAB system, irreparable harm is occurring to patent holders. Conversely, virtually no harm will be done to petitioners by putting on the brakes. Charging ahead in light of the conflict between examination and post grant review will only continue to damage patent holders. The probability of substantial error is extremely high under the circumstances. Improperly cancelled claims will be very difficult to correct, but delaying adjudication by a few months carries no risk… The USPTO should suspend all PTAB proceedings immediately. This can be accomplished by the USPTO invoking §316(a)(11) and §326(a)(11) to extend all pending proceedings by 6 months, which will allow time necessary for the government to implement procedural reforms to stabilize the system.

The beauty of the patent troll narrative was it took little time to absorb and instantly painted a pejorative picture in the minds-eye of the listener. It became easy to repeat. Its bumper-sticker simplicity lead to widespread usage, which ultimately (and quickly) became accepted as fact without much, if any, critical thought. Most important, the strategy by-passed the arcane complexity of its convoluted subject matter by shifting the burden of Congressional persuasion to its victimized and under-resourced opponents… Expect big tech and its leftist bed-fellows to exert more effort to “de-propertize” patents on Capitol Hill and in the courts… Expect proponents of reform to mischaracterize patent reform as a step towards tort-reform, which is nearly comical given that the tortfeasor in the equation is the party that is trampling on the property rights of patent holders through infringement, which is many times purposeful and willful.

Fixing America’s patent system is necessary for meaningful economic growth for America’s workers and America’s global competiveness over countries like China. Not surprisingly, Judge Michel thinks that “[w]hile we’ve been weakening our patent system in many ways in recent years, China and other countries have been greatly upgrading their patent systems . . . investment is shrinking here and it’s growing elsewhere.” Judge Michel kept returning to the theme that the lack of new jobs “is the biggest single problem in America today,” and that “whether you talk about job creation or growth or revival of distressed cities . . . the innovation ecosystem is at the heart of the solution.”

The old arguments that patents inhibit innovation, and non-exclusivity with compulsory licensing leads to a brave new world are now in vogue. We’ve stood at this fork in the road before. It requires courage to reject the easy path downward and restore the system which created our prosperity. If we lack the will, we have no one else to blame as we plunge deeper into the mire. That’s the last place anyone wanting to drain the swamp while growing the economy should go.

With respect to the thorny issue of patent litigation, Senator Hatch explained that there is a very real chance that venue reform will happen this year… HATCH: “The Supreme Court is currently examining the issue, so we won’t have a full view of the landscape until after the Court rules. But no matter what the Court does, we’re likely going to need follow-on legislation to prevent future forum-shopping and to ensure that litigants have a meaningful connection to the site of the suit.”

The impact of Alice has been just what one would expect. The decisions of the USPTO examining corps, USPTO Patent Trial & Appeal Board, and lower courts have been wildly inconsistent. Far too many worthy inventions are being lost. Perhaps worse, the predictability innovators and investors in research and development require to effectively navigate the patent system has been eliminated. Change is sorely needed and overdue.

While calls for widespread patent reform are not as loud as they have been in previous years, 2017 is shaping up to be a year where we may still see significant change to U.S. patent laws. What will the changes to U.S. patent laws look like over the next year? The better question may be to first ask whether those anticipated changes will be coming from the judiciary, legislative or executive branch, all of which will take center stage at some point in 2017.

Congressman Bob Goodlatte (R-VA) holds the Chairmanship of the House Judiciary Committee, and as such will wield a great deal of power over any intellectual property related legislative reforms that will occur during the 115th Congress. Earlier today Goodlatte unveiled his agenda for the 115th Congress. Not surprisingly, a portion of his agenda includes additional patent litigation reform in order to address what he characterizes as “truly frivolous lawsuits,” as well as reforms to keep America’s patent laws up to date and copyright reforms to help ensure “America’s global leadership in creativity and innovation continues.”

IPO supports legislation because the patent eligibility test created by the U.S. Supreme Court is difficult to apply and has yielded unpredictable results for patent owners in the courts and at the USPTO. IPO’s proposed legislative language would address these concerns by reversing the Supreme Court decisions and restoring the scope of subject matter eligibility to that intended by Congress in passing the Patent Act of 1952; defining the scope of subject matter eligibility more clearly and in a technology-neutral manner; requiring evaluation of subject matter eligibility for the invention as a whole; and simplifying the subject matter eligibility analysis for the USPTO, courts, patent applicants, patentees, practitioners, and the public by preventing any consideration of “inventive concept” and patentability requirements under sections 102, 103, and 112 in the eligibility analysis.

The Senate Judiciary Committee is where any action relating to intellectual property reform will be played out during the 115th Congress, at least on the Senate side of the Capitol. Unlike in previous years, we enter 2017 without much support for a fresh round of patent reform, but at least some patent reform measures are sure to be introduced during the 115th Congress… Look for efforts to grant the Copyright Office greater autonomy and independence during the 115th Congress, even a push to remove the Copyright Office out form under the Library of Congress… Without further ado, meet the Republicans on the Senate Judiciary Committee.

The genesis of the patent venue “problem” is simple: Many patent infringement defendants complain about traveling to the Eastern District of Texas. They feel that it is too pro-patent, too pro-enforcement, or too difficult for defendants to win on a motion to dismiss… With the US Supreme Court agreeing to hear TC Heartland the perennial patent venue issue is front and center for patent reform in 2017. This case will attract much amicus, media, Congressional, law school, and fake news attention. It should influence how patent owners and litigation investors look at venue options in general and perhaps also with regard to growth markets like Germany and China. It will also tell us how the Trump administration thinks about patent issues.

While Congress seems to pass some form of patent legislation roughly every 9 to 11 years, the more important changes with regard to business predictability and economic growth tend to come from specific Court decisions. Just look at what Alice has done to ruin software patents with uncertainty, and now with the PTAB actually finding that an MRI machine is an unpatentable abstract idea. Worse it has placed the US behind Europe and even China in terms of protecting computer implemented inventions… Courts can make patents great again in America. And if not they will at least be as active as they have been in the past 10 years in terms of shaping the patent dialogue.

While Congress does seem to pass some form of patent legislation roughly every 9 to 11 years, the more important changes with regard to business predictability and economic growth tend to come from specific Court decisions. Just look at what Alice has done to ruin software patents with uncertainty, and now with the PTAB actually finding that an MRI machine is an unpatentable abstract idea. Worse it has placed the US behind Europe and even China in terms of protecting computer implemented inventions.