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Posts Tagged: "predictions"

Looking Forward: Predictions and Thoughts for 2019

Given that several industry insiders were willing to make their own predictions, I’ll go out on a limb and make my own predictions… First, I predict Congress will do nothing on patent reform in 2019. With a divided Congress and a House of Representatives that could well spent precious legislative time on impeachment and other investigations, intellectual property matters likely won’t register even a blip on the public radar inside the beltway. Second, I predict there will be much effort behind the scenes on Capitol Hill to position various legislative fixes to 35 U.S.C. 101 so that when attention does turn to patent eligibility the ground work will be laid and much of the heavy lifting already done. So, if you think you can sit out 2019 because nothing is happening you’d be incorrect. Those that want to influence the next round of patent reform have already been working and by the time it is rolled out publicly it will be too late. Third, I predict the United States Patent and Trademark Office will define the term “abstract idea”. This is hardly going out on a limb since Director Iancu has all but promised just that in a speech given at Georgetown on November 26, 2018. Since the courts refuse to define the term the USPTO will closely identify only those innovations that the Supreme Court has identified as representing an “abstract idea” and closely define the term to mean those things and only those things are abstract ideas, with everything else in the computer implemented universe not being directed to an abstract idea and, therefore, patent eligible under Step 2A of the Alice/Mayo framework.

Predicting Patent Number 10,000,000

The date of patent number 10,000,000 will be June 19, 2018. We feel this one is the easiest part of the prediction. We also think the USPTO will award Patent 10,000,000 to Application 13/666670 – SEARCH SPACE DESIGN FOR E-PDCCH IN WIRELESS COMMUNICATION NETWORKS from Qualcomm Inc.

Six Predictions for the 2018 Patent Environment

For patent practitioners, this year packed in a lot of activity: Fractured Federal Circuit en banc decisions resolving who bears the burden of proof on motions to amend in an inter partes review (IPR) proceeding and wading into the Apple-Samsung wars, and U.S. Supreme Court decisions on patent exhaustion, design patent damages, the fairly untested Biologics Price Competition and Innovation Act (BPCIA), and venue. And there’s still more coming, with outstanding opinions from the Federal Circuit on the reviewability of the Patent Trial and Appeal Board’s (PTAB) time bar decisions and from the Supreme Court on the constitutionality of IPRs and the PTAB’s authority to institute proceedings partially. Coming off such a blockbuster year, what comes next? Here are six predictions.

Looking Forward: Predictions and Thoughts about 2018

First, I predict that the United States Supreme Court will find post grant procedures under the America Invents Act to be unconstitutional. It is my belief they took Oil States not as a patent case, but rather as an Administrative State case, and if that is correct this could be the first in a series of decisions over a number of years that will pull authority back from the growing Administrative State and toward the Judiciary. Second, in the event the Supreme Court does not declare post grant challenges unconstitutional, I predict the new USPTO Director will substantially modify PTAB rules and procedures, making them more fair and balanced. Third, again assuming my first prediction is incorrect, I predict the PTAB will continue to ignore Eleventh Amendment immunity and will likewise rule Indian Tribes do not deserve to claim sovereign immunity when in front of the PTAB. This will set up a showdown at the Federal Circuit that will ultimately be settled by the Supreme Court, likely in 2019. Finally, I predict there will be continued discussion about patent reform, with the conversation becoming increasingly pro-patent as Members of Congress continue to see undeniable proof that the U.S. patent system is regressing while the patent systems of the EU and China are on the rise. More specifically, I predict that the U.S. will fall out of the top 10 for patent protection in the annual Chamber IP Index, which will send a shockwave through the Capitol.

Will the Supreme Court continue to be influenced by patent reform?

Invariably, the Supreme Court takes a provision or two from pending legislation and makes it law. Will they do the same now that pro-patent reform is actually pending in Congress? After so many years of staying out in front of patent reform legislation that has weakened the U.S. patent system, dropped early stage investment by 62% and brought us a 40 year low in startups thus sending venture capital, startups and complete swaths of new technologies to China, how odd it will be if the Supreme Court doesn’t do the same now that pro-patent reform is actually pending in Congress.

Predicting SAS Institute v. Matal after SCOTUS Oral Arguments

My thoughts continue to be that the statute is very simple and mandates the PTAB to issue a final written decision on all claims challenged. This seemed to be consistent with what Justice Alito and Justice Gorsuch were saying during the oral arguments. However, Justice Sotomayor dominated questioning throughout the early stages of the oral argument, continually saying that what was being sought was a reversal of the Court’s decision in Cuozzo. Justice Breyer, who seemed clearly in favor of the respondent, sought to re-write the statute to find the actions of the PTAB to be in keeping with the text of the statute. Nevertheless, the oral arguments suggest there will be a split among the justices, perhaps along political lines (i.e., liberal wing vs. conservative wing). Should the conservative viewpoint of Justices Alito and Gorsuch prevail there is also a chance that the Supreme Court will rule that the PTAB cannot grant partial institutions… After the conclusion of the oral arguments, I reached out to a number of industry insiders to ask them to provide their thoughts and predictions, which are admittedly quite different than my own analysis. Their answers follow.

Predicting Oil States after Supreme Court Oral Arguments

After oral arguments were held on Monday, November 27, 2017, I again asked a number of industry insiders what thoughts and predictions they now have after having the benefit of hearing the Q&A that took place between the Justices and the attorneys representing the petitioner, respondent and federal government. Their answers follow, and show that there is little agreement among those watching this case with respect to what the likely outcome will be.

USPTO Issues Patent No. 9,000,000 on Windshield Washer Replacement System

Earlier today the United States Patent and Trademark Office issued U.S. Patent No. 9,000,000. The invention that was awarded this historic patent is a system and method of collecting and conditioning rainwater and other moisture from a windshield of a vehicle and utilizing the collected fluid to replenish the fluids in the windshield washer reservoir. Undeterred by my inaccurate prediction on when the USPTO would issue Patent No. 9,000,000. I predict that the Patent Office will issue Patent No. 10,000,000 on November 28, 2017.

Is the Patent Market Poised for Rebound in 2015?

While timing a bottom is never a good investment strategy, recognizing a bottom does present real opportunity. As the 18th century British nobleman Baron Rothschild is famously quoted as saying: “The time to buy is when there’s blood in the streets.” This contrarian philosophy is based on the realization that when things hit bottom they can’t get any worse, and can only get better. In the patent/innovation sector there are some recent signs that things may have hit the bottom and be trending up. The Supreme Court did not say software is patent ineligible, and we know from previous decisions that at least some business methods are in fact patent eligible. The Federal Circuit finally found software patent claims patent eligible and Senator Dick Durbin (D-IL) seems to have no appetite for patent reform.

What happens to IP law in 2014?

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.