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« Ex parte Kotanko (PTAB 2018) | Main | Multiple Artificial Intelligence Bills Introduced in House and Senate »

February 14, 2018


The UK patent judges are very fond of the mantra that "Business hates uncertainty". Here, looking at the Chamber of Commerce paragraph, it seems to me that the only thing that matters, when it comes to ranking countries, is the level of certainty.

What delivers the greatest degree of "certainty" though? Stasis perhaps? Stagnation? Zero rate of change? Is that what industry wants?

The perspective that the US patent system has become less friendly to innovation and IP rights is, as the previous post mentions, largely due to it upsetting the status quo. The counter position is that taken by the Supreme Court, 2011 Patent reform act, and multiple lower court decisions: what these have in common is reigning in of grants of patents and more rigorous review outside of the district and appellate courts. The reforms have brought the US system closer to that of German, EU, Japan, and other leading PTOs. Although the systems have several remaining differences, the US system has joined the practice of providing a more extensive mechanism for patent review before the need to test claims in court.

One facet of the US system is that it is among the most expensive countries to pursue patent rights or defend against them in court. That almost always favors the entrenched companies rather than the sole innovator or small company. IPR review has upset the status quo. However, on balance it provides a means to test patent claims which are part of the 'Patent Quagmire' that work against the less funded innovators than it does against those who have deeper pockets.

I am an individual who has prepared and filed my own patents while striving to launch a startup. However, I view the US patent landscape as having grown far too lenient, allowing many patents to be granted with broad claims despite with apparently little review by the PTO.

There are a couple parts of the recently proposed 'Stronger Patents Act that I tend to favor. However, the brunt of proposed legislation aims to "fix" parts of the system that the Supreme Court and other court rulings and 2011 legislation have fixed. The backlash against the court and legislative reforms is a reaction to much-needed changes of a system that had grown out of control.

Among the issues, the Stronger Patent Act has been said to remedy is the SCODUS' ruling that a defendant in a patent case was granted attorneys fees and costs amounting to $4.1 million:

US Bar Association:
"The court analyzed the reasonableness of the requested amounts, ultimately reducing the fee claim by 15 percent, to approximately $4.1 million, and the expense claim by 45 percent, to approximately $478,000. Still, the court awarded what it admitted was “a relatively large number.” Among other things, the court based its finding that the case was “exceptional” on the facts that “this litigation was at least in part motivated by Plaintiff’s desire for ‘payback’ for Defendant’s successful competition in the marketplace, that Plaintiff failed to adequately review its own material concerning marking before filing suit, that it engaged in discovery gamesmanship to obscure such failing, and that Plaintiff engaged in ‘troubling’ conduct concerning a petition for correction of inventorship.”

However, a reading of the case and ruling shows that
the case was exceptional in the extent the plaintiff used obfuscation of prior art and other conduct. That beating down the ability of patent holders to pursue the legal strategies that worked in the past was a much-needed response of the court. It is a restricted set of the president that does not cripple 'good actors' IMO.

The issue I agree with in the Stronger Patent bill is that patent fees should not be diverted by Congress. The USPTO has become under-staffed and ill-equipped, such as upgrades to new computer systems. That can be directly attributed to the siphoning off of funds by Congress over the past 15 years. The USPTO needs to become the best equipped, most accessible and easiest to work within the world to befit the status that many say we have shrunk.

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