We have a new edition to our annual article series, which looking backward with reflections on the biggest moments of the year that has passed and which offers wishes for the year ahead. This year we also asked industry leaders if they would care to take a stab at predicting the future.
Of course, if I’m going to ask others for predictions I should be willing to make my own. With that in mind, I predict that 2015 include the inevitable attempts at patent reform, which will almost certainly surface in late January or early February. Unlike in years past, however, I don’t know that Congress will be as keen to take action. There are certain Senators and Representatives that would like to see sweeping reforms, but I think at best we will get modest reform in 2015, perhaps with some legislations surrounding demand letters, which largely won’t be contentious. I predict that the many forces urging caution will prevail in the end and work to slow or stop patent reform. I do think we will see meaningful strides on trade secret legislation, as well as copyright legislation.
I also predict that the Supreme Court do as much damage this year, but that isn’t because I think they will suddenly become more informed. Instead they won’t cause the large scale, widespread damage they did over the past several years simply because they haven’t taken cases that could lead to another calamity, at least not yet.
Several weeks ago I also predicted, or at least suggested, that the patent market was poised for a rebound in 2015. I don’t know that the fundamentals of the market have shifted yet, although the Federal Circuit ruling in DDR Holdings has to be at least some evidence that things are looking up. Indeed, I am convinced that we have weathered the worst of the storm and that things can’t get any worse in 2015. Therefore, I’m sticking to my previous prediction when we look back on 2015 one year from now we will recognize that 2014 was the bottom and things are only up from here.
Without further ado, here are the predictions I received from several industry insiders.
One of the most important trends in IP in 2015 will be the emergence of predictive analytics into the mainstream to guide the patent prosecution process. Predictive analytics has been around for decades, but now we are seeing it extend into patent prosecution. I think this is a game-changer for patent prosecution management.
While the technologies to accomplish this advancement have been progressing, 2014 seemed to represent an inflection point.
Predictive analytics are no longer simply tools to understand patent examiner statistics, but analytics to materially improve the management and workflow for patent applications. At the heart of these analytics is a robust collection of patent application file histories that are analyzed in detail to identify the substantive and procedural implications of every included document. This data is now sortable for trend analysis on a variety of different bases, such as patent examiner-specific, art unit-specific, primary examiner-specific, applicant-specific, and industry-specific bases. This allows USTPO customers to have an “insiders’ ” perspective of the agency like never before.
In 2014, I began to encounter patent attorneys using prosecution predictive analytics on an increasingly regular basis. In 2015, I think we are going to start to see a visible advantage for those IP law firm, companies, universities and other innovators who are using predictive analytics to analyze and manage not only their own filings, but also to gain insights into the competitive landscape.
Some IP practitioners are going to keep relying on experience and intuition to amend their applications, and knowing how to do that will always be important. That said, when an equally savvy competitor is using something like LexisNexis PatentAdvisor (one of the tools in this category) to help better manage their patent prosecution performance…well, that is transformative. Similar to the changes we have seen across many industries after an evolutionary innovation is introduced, this technology is headed for widespread adoption that could change the way patent prosecution is managed. The eventual impact on the USPTO itself is tougher to predict and will be interesting to watch.
The world of IP law – unlike the creativity and innovation from which it profits – is predictable. Thus, the 2015 IP landscape is nearly certain. Patent reform efforts will dance around but not have material impact. Corporate lobbyists will sway public favor without being called out for their hypocrisy. False distinctions between software and hardware will continue to puzzle media and the courts. And because patent eligibility questions will remain unresolved, the USPTO will deliver inconsistent office actions and allowances across art units. The glossary pilot will be deemed inconclusive and inventors generally won’t make better or worse use of lexicons in their patent specifications. We will continue to vilify small businesses and independent inventors for attempting to profit from their ingenuity, especially if they sell their patents to non-practicing entities as a means of realization. Expert witnesses will be lured into giving illogical testimony, even when they believe otherwise. And although rulings and laws will not reflect present day (or even recent) technology paradigms, our favorite companies will release sexy, new, smart watches and virtual reality headsets that transform our everyday lives. We will spend gobs of money in new ways – some foolishly, some wisely. Fun will be had by those of us who don’t take any of this too seriously.
I haven’t been much of an optimist about anything lately, so for my predictions for 2015, I’ll put on my happy hat and see what I come up with.
Supreme Court Justice Roberts will have an epiphany and announce that since the Supreme Court Justices have virtually zero experience with patent prosecution or litigation, they will no longer be hearing patent cases. Congress will get a do-over on patent reform and return the patent laws to the ones originally envisioned by our Founding Fathers and that have made America the predominant force in technology and industry since its founding. Major corporations will decide that making a few billion dollars extra in China over the next few years is not worth handing out their lifeblood, in the form of IP, that will eventually lead to the demise of major US industries. They will protect their IP better and demand that the US government back up their demands that China stop encouraging IP theft. The US government will treat the theft of IP from US corporations by foreign governments as acts of war and will craft policies that deter such actions and effectively (not “proportionally”) end these attacks.
Oh yes, and I predict that I will gain super powers from some kind of freak accident in my home workshop, and People magazine will vote me Sexiest Man of the Year. If I’m going to dream, I may as well dream big.