“While many have resisted the temptation to move away from a one-size-fits-all patent system… [A]ll patents— good, bad, revolutionary, and stupid—have eroded to the point where continued use of the U.S. patent system must be questioned.”
Patents in the United States are one-size-fits-all. If you obtain a patent on a revolutionary innovation, such as Bluetooth, the general patent term, without any extensions for Office delay, would be identical to the patent term for a method of walking a snake. Although, presumably, the requirement of paying maintenance fees on utility patents will result in the truly obscure and commercially irrelevant patented inventions falling into the public domain well before the natural expiration of the full available term, these two inventions are treated equally not only for purposes of term calculation, but for purposes of application requirements, filing requirements, examination, novelty and obviousness thresholds, and every other aspect of patent law. That is what it means to have a one-size-fits-all patent system. Regardless of the importance of the invention, every invention is treated the same.
But beyond the obvious disparity between the importance of these two illustrative inventions to society, the U.S. patent system does not consider how capital intensive it will be to bring the invention to the market so society can enjoy the fruits of the inventors’ labors. The patent laws and rules similarly do not consider how long it will take the inventor to bring the invention to market either. So, if you have an invention that will require $50,000 to take from idea to market you receive the same protections as one who has an invention that will require $100 million, or $1 billion, or $10 billion to get the invention to market.
It is becoming harder to justify a one-size-fits-all patent system, particularly in a world where infringement is not only tolerated but excused as if the innovator is the bad actor. It is even harder to justify when the infringers are willing to settle cases against those with weak patents and dubious claims of infringement for nuisance value but fight for a decade against innovators who have spent many millions, sometimes hundreds of millions if not billions of dollars, creating important inventions that are simply copied in a predatory manner.
Activity is Malicious, Not Actors
There is nothing wrong with being an implementer, and there is nothing wrong with being an innovator. Problems surface, however, when malicious action occurs, and there is plenty of malicious activity in the patent world, just not the type that most are familiar with if your knowledge is based solely on accounts in the popular press.
Implementers complain that there are patent owners who engage in frivolous litigation using bad patents and egregious litigation tactics, and they refer to these bad actors as patent trolls. While it would be foolish to pretend that there are not bad actors who are patent owners, implementers have successfully managed to convince Congress and virtually all journalists that the term patent troll is synonymous with the term patent owner, which is as ludicrous as it sounds. Vilifying an entire category of people based on the actions of a few is juvenile, to say the least. While that may have worked in the third grade, no one who thoughtfully considers the issue could ever reasonably conclude that 100% of any category is all good or all bad. The argument is preposterous on its face, but a lot of very smart people have fallen for this charade for too long.
But as implementers lament patent trolls they conveniently overlook their own predatory behavior; the stealing of rights from innovators without any intention of ever paying. And this has become a strategy without consequence, making it exceptionally popular.
While many have resisted the temptation to move away from a one-size-fits-all patent system and recognize that certain patent owners deserve more, or at least better, rights, we at least need to have that conversation. It is not ideal, and there is absolutely no support in the law for treating any patent or inventor differently than any other patent or inventor. Those who are similarly situated should be treated similarly under the law, but the inescapable truth is U.S. patent laws have been eroded for everyone. The patent troll problem, which was always overblown, has allowed infringers to justify their own predatory behavior, while demonizing all patent owners.
Meanwhile, all patents— good, bad, revolutionary, and stupid— have eroded to the point where continued use of the U.S. patent system must be questioned. Despite the statute saying that patents are to be treated as property rights, the Supreme Court has ruled that patents are merely government franchises that can be stripped at any point in time during the life of the patent regardless of how much time or money has been invested by the patent owner. It simply cannot make any sense for all patents to become increasingly worthless simply because of the victimization of large multinational corporations who are incapable of crafting a strategy that solves the nuisance litigation problem that does not destroy the entire system.
Patents, at least some of them, must have a title that quiets at some point. And if patent ownership does not settle, how much longer can we realistically anticipate innovators will use the U.S. patent system? Even Congress recognized this problem, which is one reason why the some Members argued a federal trade secret law was necessary.
Intervening Rights for Patent Owners
The patent laws have scenarios throughout where infringers are granted intervening rights if, for example, a patent owner must change the claims. Absolute intervening rights are available for a party that prior claims changing, made, purchased, offered to sell, or used within the United States, or imported into the United States, anything patented by the reissued patent, and equitable intervening rights are provided where substantial preparation was made before there was a change in the claims.
Why shouldn’t patent owners obtain intervening rights? Infringers have a multitude of opportunities to challenge claims throughout the patent process. Third-party pre-issuance submissions can be submitted to the patent examiner to prevent a mistake from ever being made in the first place, but this is virtually never used. There is also an opportunity after a patent has been granted for any third party to bring a post-grant review (PGR) challenge, which will allow for any issue to be raised by the challenger, including issues relating to patent eligibility and sufficiency of disclosure, but this procedure is virtually never used by infringers either.
If a patent owner has spent significant time and money innovating, and the infringer has not availed themselves of any opportunity pre grant or within the first nine months post grants during the PGR window to make a third-party pre-issuance submission, or challenge the patent, why should the infringer or any entity in privy with the infringer have any right to file a subsequent challenge? If there is a domestic industry in the United States, why should we allow infringers to be able to at any point in time during the patent lifecycle file a challenge to take the patent away from an owner that has made investments in research, development, and market deployment?
If the concept of intervening rights makes sense for infringers, then the concept must make sense for at least some patent owners. It is time to start talking about that so those patent owners who are the backbone of the innovation ecosystem don’t get lumped together with any bad acting patent owners.