The Supreme Court agrees: patents give you superpowers!

In a witty but unsurprising Supreme Court opinion, Justice Kagan gave us what will likely become every patent attorney’s favorite Court quote:

Patents endow their holders with certain superpowers, but only for a limited time, In crafting the patent laws, Congress struck a balance between fostering innovation and ensuring public access to discoveries. While a patent lasts, the patentee possesses exclusive rights to the patented article—rights he may sell or license for royalty payments if he so chooses. But a patent typically expires 20 years from the day the application for it was filed. And when the patent expires, the patentee’s prerogatives expire too, and the right to make or use the article, free from all restriction, passes to the public.

Kimble v. Marvel Entertainment, LLC., 576 U.S. ___ (2015) (PDF) (emphasis added, internal citations omitted).

    The case itself focused on the “limited time” aspect of the superpowers a patent grants. United States Patent Number 5,072,856 covered a device that let users play at shooting spider webs from their hands (like a certain superhero), but even such a mighty patent could not command royalties after it expired. This outcome was hardly surprising, since the Supreme Court had said the same thing fifty some-odd years ago in Brulotte v. Thys Co., 379 U.S. 29 (1964). While three Justices (Alito, Roberts, and Thomas) did dissent, overturning Supreme Court precedent doesn’t happen very often, especially when the precedent involves statutory issues rather than Constitutional issues.

    Affirming old precedent isn’t all that exciting, but comparing patents to some elixir that grants temporary superpowers is both fun and apt. Patent’s grant powers well beyond the norm in our free market economy, but even if you can imbibe of the potion that grants those powers, the effects wear off—and those powers sometimes come at a high price. 

    With a patent, you can sue your competitors and get a court order forcing those competitors to stop competing under penalty of being held in contempt of court. The court can also force them to pay damages for competing in the first place. With a patent in hand, you can strike a deal with your competitors where they pay you for the privilege of conducting their business. Now that is a superpower! Shooting sticky webs out of your hands is great if you want to climb walls or something, but if you want to make money patents are probably more useful. 

    The problem with patents, as Justice Kagan noted, is that the superpowers they grant wear off. Another problem with patents (that Justice Kagan didn’t have to reach) is that just like a superhero has to fight supervillains with their own superpowers, your competitors in business may own their own patents—resulting in a battle of superpowers. And, just like comic book superpowers often come with a great cost, getting that patent in the first place isn’t an easy or cheap proposition, as extracting the potent patent elixir from the Patent Office is a laborious process.

    Are the superpowers a patent gives worth the cost? That depends upon what use you have for the power and what they will cost you. Even if the cost is worth it, though, you have to realize that the powers don’t last forever.

Different Kinds of Patent Reform

There’s more than one way to “reform” patent law. I use the scare quotes because one person’s needed reform to enable innovation is another person’s blow that crushes innovation. I’ll drop the quotes and just stipulate that any change to the substance or procedure of patent law can be called reform.

One way to reform patent law is to pass legislation. Taking this approach, the Innovation Act of 2015 was recently introduced in Congress. Different participants in the patent system may have different opinions on the many proposals of the Innovation Act, but we all know about it. As far as patent-related news goes, the introduction of bipartisan legislation to amend the Patent Act is a big deal.

Another way to reform patent law is through the courts. Some cases receive extraordinary levels of reporting—the Alice decision from the US Supreme Court being a somewhat recent example—and other cases receive relatively little attention, but all of the court decisions impacting how patent law operates are publicly available, whether you care enough about patent law to read them or not.

Yet another option for reforming patent law reform is for the Patent Office to issue guidelines and rule changes. This approach probably will only be noticed by those who care about patent law rather intensely, but at least those who do can comment on the proposals and ultimately proceed in accordance with the new standard.

While the merits of any particular reform accomplished in any of the above fashions may be debated, at least those merits are debatable—a point which brings us to a final way to reform patent law: a secret program. The problem with a secret program (even when the very existence of the program ceases to be secret) is that, no matter how good (or bad) the program is on its merits, the lack of information about how the program operates leaves all of us wondering where to go next.

2015 appears destined to be another year of patent reform. Hopefully it will be the kind of reform we all can participate in, shape, or at least adapt to. That’s the best kind of patent reform.

Peak ‘Troll’?

No doubt about it, making predictions is never easy, but it is especially hard to predict the future. The best predictions, by and large, are those that are premised upon a large sample of data that can be extrapolated to future events. Unfortunately, such large data samples are hard to come by in the patent world, and even when we have the dataextrapolation proves problematic, since the rules keep changing.

With all those caveats in place, in patent law the rules changes of recent years would seem to indicate that patent litigation, particularly the type of litigation derided as the work of “patent trolls,” should be decreasing now or in the very near future. Successfully asserting a patent of dubious quality has become harder, not to mention riskier, and getting potentially dubious patents in the first instance has similarly become more difficult. 

None of the above, however, drives me to speculate that the patent infringement suits motivating much of the patent reform movement are perhaps already past their peak. Instead, I base my speculation about the future of patent litigation upon a nice couple from a small town I met briefly this past summer. Both of the pair worked for a public school district. They have no lawyers in the family, no engineers, and no technology entrepreneurs, not even particularly technology oriented hobbies, to motivate an interest in the patent system. Nevertheless, they shared with me some ideas about how to stop those terrible patent trolls. Not terrible ideas, I should add, certainly nothing that could be dismissed as crankish. Even if their ideas might have needed a bit of tweaking in order to be implemented, they were well informed and well considered.

I don’t think that public school employees are the metaphorical equivalent to Joseph Kennedy’s shoe shiner, but I do suspect that when public consciousness of an aspect of the patent system has reached such a level that even quintessential middle Americans with no stake in the system have informed opinions about patent reform, fundamental change is afoot. We will have to wait and see what the numbers say.