Posts Tagged: "Bob Stoll"

I would love to see patent eligibility reform in Congress that would overrule Mayo, Myriad and Alice. I would also love to see meaningful copyright reforms and/or real Internet industry cooperation that recognizes the important rights of content creators, both large and small. I would also like to see federal trade secret legislation, which is critically important given the erosion of patent rights over the last several years. Until Congress realizes just how damaging the Supreme Court has been over the last decade more innovators will need to rely on trade secret protection, and having one regime rather than 51 regimes (i.e., 50 states plus the District of Columbia) makes no sense given the national and international scope of business in today’s global economy.

It is one again time to take a moment to look back on the year that was, reflecting on the biggest, most impactful moments of the year. For us that means looking backward at the most impactful events in the world of intellectual property. Unlike in years past where we would get a variety of different perspectives from industry insiders, there…

The Supreme Court is simply not knowledgeable about patent law. And that’s not to say that the Justices couldn’t become knowledgeable, but even in this active state they’re only handling six or eight patent cases a year at most and so a lot of those deal with contracts and that sort of thing. So they’re not ever going to do enough patent cases to develop a specialty. They’re allergic to bright line rules despite the fact that in our space we have 10,000 front line decisions makers between the patent examiners, the Board, the district courts, and the Federal Circuit. You can’t have that many decisions makers without bright line rules, which should be self-evident to anybody including those that went to Ivy League schools and wear black robes. But apparently it’s not.

This No-Fault licensing system will price its license products based on the likelihood that a company is using a patented technology rather than on a legal standard of absolute certainty… In order to accomplish the ultimate goal, the Patent Utility will select statistically relevant patents for No-Fault licensing by using sophisticated software. The software compares the terms and concepts in millions patent claims in currently unexpired patents against the terms and concepts in the specifications of a company’s specific product line or service. It then scores all 2.1 million unexpired U.S. patents on a scale from 1-100 depending on their statistical relevance to the product or service.

The above-enumerated problems of the current patent system are real and barriers to further innovation and job creation. But the solutions do not require a comprehensive definition of a troll to fix the patent system. Lady Justice is blindfolded for a purpose. Justice in the US should be meted out objectively regardless of identity. So too in the instant situation. It is not the identity of the actor that needs to be evaluated, but the character of the action. We need to assure that frivolous, predatory actions are penalized and prevent the abusive tactics used by many that harm our innovative culture.

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.

In this edition of Biggest Moments in IP we have a variety of reflections on a wide array of IP issues. Todd Dickinson goes international by pointing to the EU Unitary Patent as a very important long-term milestone, and congratulates the USPTO on being ranked the top place to work in the federal government. Scott McKeown focuses on a decision from the Federal Circuit that will allow collateral challenges to damage awards. Bob Stoll points to the Innovation act, Federal Circuit disarray over software, the “revolutionary” Supreme Court decision in Myriad and the Microsoft/Motorola FRAND decision.

Today, after several years of substantial turmoil, patent eligibility in a variety of economically significant technologies is extremely uncertain, including software, natural products, medical diagnostics and personalized medicine. It is with great irony that one of the few things we know with any degree of certainty is that business methods are patent eligible… If you haven’t noticed, overwhelming portions of the U.S. economy are tied to the biotechnology and software sectors. Are we about to throw away our economic leadership? There are already some lawyers talking openly with clients about whether they may be able to in some cases actually get broader, more certain protection outside the United States.