The patent-o-sphere has been justifiably consumed with talk of fee-shifting in patent litigation for the past few weeks.
First, there was a legislative proposal to make at least some losing patent plaintiffs pay for the prevailing defendant’s attorneys, resulting in a mad rush to file patent infringement lawsuits before the proposed effective date of the not yet enacted legislation. The sudden glut of infringement suits raised many eyebrows.
The Supreme Court soon had everyone talking about the current statute instead of proposed amendments to the statute. In particular, the Court addressed the meaning of the section of the Patent Act authorizing courts to award the prevailing party an award of attorneys fees in “exceptional” patent infringement cases. While much discussed by now, the Court’s expansion of fee awards to prevailing defendants probably did not go as far as the current congressional proposals.
All of the talk of litigation fees could tend to feel far away to those of us drafting patent applications. After all, an application that we file today may not issue for years, and even then most likely will never be litigated.
To the contrary, these developments merit our serious attention. Ultimately, the value of the property we are tasked with obtaining depends, at least in part, upon the ability to enforce those property rights in court. No patent attorney has a crystal ball to know how a technology or a business market will evolve, but we have abundant evidence as to how patent law is evolving; the Supreme Court and Congress merely provided the most recent data points in the larger trend of the evolution of patent standards.
Patent standards are rising. We cannot always predict the ways those legal standards will evolve between now and when a patent issues or is enforced, but we can draft applications that are thorough, well-reasoned, and clear without undue limitations. That may seem like a facile assertion that patent attorneys should do our jobs better in response to changes in the law, but writing patent applications with clarity and precision has not always been synonymous with application quality. A time existed — and existed not too long ago — when a patent application with creative ambiguity might have far more value than a patent application with clarity and precision.
The recent developments in Congress and the Court merely demonstrate, once again, that the era of expansive patent rights that rewarded creative ambiguity at best and obfuscation at worst has approached its end. While most patent application drafters never aspired to the worst of the old era, our best efforts for today and tomorrow will read and look different than what our best efforts used to be. Continuing to work and write in the ways we grew to know over the past decades will no longer pay the dividends we grew to expect. Now is the time to draft applications for the next era, not the era that is drawing to a close.