Posts Tagged: "US Patent System"

Before proceeding it is worth noting two things. First, that my list focuses on specific and identifiable events. Second, there are a number of stories worth mentioning, but which just missed the cut for one reason or another. The two that will probably be most glaring omissions are the Federal Circuit’s decision in Vanda Pharmaceuticals v. Westward Pharmaceuticals, 887 F.3d 1117 (Fed. Cir. 2018), and the final rules implementing the Phillips claim construction standard. With respect to Vanda, while it is a pro-patent decision, the claims found eligible are virtually indistinguishable from those held ineligible in Mayo, so it seems virtually certain a different panel of the Federal Circuit would have ruled differently. Thus, all Vanda did was seem to create uncertainty, which may be good for settlements, but likely not a repeatable decision. As for the Phillips standard, while it makes perfect sense for the PTAB to be using the same claim construction standard as used in federal district courts, many have questioned whether it will make any real difference in outcomes. Still, it is a big event and would have been 11th on my list. Had a chance to Phillips been accompanied by patent claims being presumed valid and requiring clear and convincing evidence to be declared invalid at the PTAB, that would certainly be worthy of top 10 inclusion. Alas, that would require an amendment to the statute and beyond the powers of Director Iancu. Thus, the banishment of BRI, while important, finds itself on the outside looking just in at this year’s top 10.

The trade dispute between the US and China started with a US accusation of intellectual property theft on the part of China.  Is China really “stealing” intellectual property?  I’m not so sure.  Perhaps the Chinese are stealing trade secrets, and if parties are engaged in such activities they should be punished, but there is a lot of taking that has been legitimized – even authorized – by the Congress and the Supreme Court in recent years.  U.S. patent law is today enabling foreign corporations, including Chinese corporations, to legitimately take intellectual property developed in the U.S.  That is not theft.  It’s just business.  And far more damage is being done to the U.S. as the result of legalized appropriation of patented innovations than could ever be done by the theft of trade secrets.

In his Categorical Imperative, Kant simplifies a moral argument position for an individual by asking a question: if you thought that your position or Statement would be Universal, i.e., applicable to all people, it would have the stance of a Categorical Imperative and thus you must do it. A proposed Categorical Imperative is the following Statement: creators should be protected against the unlawful taking of their creation by others… Allowing the free taking of ideas, content and valuable data, i.e., the fruits of individual intellectual endeavor, would disrupt capitalism in a radical way. The resulting more secretive approach in support of the above free-riding Statement would be akin to a Communist environment where the State owned everything and the citizen owned nothing, i.e., the people “consented” to this.

Every year different groups provide rankings of patent prosecution law firms and a company’s patent count for the year.  Patent law firms will tout their rankings based upon the number of filings at the U.S. Patent and Trademark Office (USPTO) or the number of allowances they obtained for clients over the previous year.  And companies will boast about their patent prowess based upon the size of their portfolios. But things are changing. Innovative algorithms and even diagnostic methods may be easier and more effectively protected by trade secret.  Trade secret protection avoids the uncertainty of compliance with the vague patentability standard set forth by the Supreme Court.

Our patent system was also been built upon classical rules and understandings, e.g., earlier patent systems, and the thoughts of Rousseau, Locke and others who influenced our Founders in the creation of our patent system. For over 200 years our patent system has been operating within the paradigm or mindset that innovation should be encouraged by providing a personal incentive to benefit the innovator (in the short term) and Society as a whole (over the long term). This reality, however, is now under question, i.e., the George Washington Interpretation that a patent system is good for the nation.

In addition to these other areas of policy interest, however, Phyllis Schlafly had a strong and enduring interest in issues relating to invention, patents and other forms of intellectual property (including copyrights).  These intellectual property and innovation issues were very important to her and fundamentally underpinned her views on why America was a great, successful (and unique) country. The importance of the American system of invention and patents was a theme that she returned to again and again over the years.

This damaging narrative, which portrays inventors in an incredibly disrespectful way, has been allowed to infect the highest levels of our nation’s government… Aside from the specific classes being targeted by these different monikers, it would seem that the use of the term “patent troll” is not much different than the use of the terms “superpredators” or “deplorables.” Each of them is a gross over-generalization of groups of people that have turned out to be incredibly demeaning and evidence a great misunderstanding of certain political realities. Many Americans are right to be outraged over the long-term effects of harsh law enforcement policies on underprivileged communities. Will they show any similar outrage over the steep decline of the U.S. patent system and our nation’s innovation economy directly attributable to the use of the “patent troll” narrative?

It is understandable that inventors, investors and others supportive of strong patent rights would be skeptical, and I’ve heard and read much skepticism. If not now, when? It would be easy to be skeptical, but the patent community should take this opportunity to engage. Despite continued disappointment from the Supreme Court, there is a very real possibility that pro-patent reforms could be achieved within the next 2-3 years. While 2-3 years may seem a long time away, if you are not trying to affect change today you will be too late by the time momentum begins to publicly surface. That’s how DC operates. So, is the pro-patent community going to continue to lose every battle?

Is the Supreme Court anti-patent? it has been suggested to me that such rhetoric, whether true or not, is unhelpful and puts those urging pro-patent views on the defensive. If that is correct then it should be banned from our lexicon. But I still wonder how one can or should refer to Justices who repeatedly vote against the patent owner? Certainly, the Supreme Court is not pro-patent, and they are certainly showing no signs of being self-aware when it comes to the path of destruction they have cut through critical sectors of the American high-tech economy. But I guess that doesn’t make them anti-patent, or at least you can’t call them anti-patent because that is rude, or off putting, or offensive to those who hold the Court in high esteem. 

We hear politicos so often proclaim that what America needs is a Twenty-First Century patent system. NO! America most certainly does not need a Twenty-First Century patent system. America needs an Eighteenth-Century patent system. The patent system our founding fathers created recognized the contributions made by everyone in the innovation ecosystem were important and necessary. We had it right once. It is time to get it right again!

“If companies were to lobby to allow for more polluting most people would think that is unethical,” Lauder explained. But there are people lobbying to make it more difficult for companies to come up with cures that allow for the creation of cures that save lives, which Lauder says he finds “equally unethical.” Lauder hopes that others start to look at the problem in the same way. That would indeed be a big step forward.

In 1790, the U.S. patent laws were first enacted and individuals could obtain a patent under the new federal government. For about a century beforehand, British citizens in the various parts of the American colonies could obtain patents for that region, and Britain and other European countries had patent laws as well. But the new American patent system was different: it was democratized in that anyone could participate, without the need for consent from the Crown. The origins of patent laws date back to the Fifteenth Century when Florentine regents sought to attract and keep innovators and their inventions. Elizabeth I was a keen ruler in passing various patent laws to encourage foreigners with ideas and inventions to relocate to Britain, as well as encourage domestic innovation.

The myopia associated with chasing quarterly earnings isn’t the only short-sighted predilection giant tech companies display. Affirmatively weakening the patent system in order to avoid upstart competitors who are lean, full of ideas, and willing to take risks to succeed is not just myopic, it is plain stupid. Sure, copying the work of others today may make business sense when trying to beat or meet earnings expectations, but expecting others to continue to invest, innovate and take risks when what they produce is simply copied is naïve to the extreme.

Interestingly, in the history of the entire CBM program, only three petitions have ended with final written decisions upholding all claims as valid. That’s 1 percent of all CBM petitions ultimately resulting in a final decision in favor of the patent owner… If Congress enacts legislation to mix the CBM program with IPRs and PGRs, which Rep. Issa seemed to contemplate during the hearing, then you just get the worst of both worlds: an environment in which any person could challenge any patent on the widest number of statutory grounds, and it all happens outside of the federal judiciary without a jury trial.