Patent Reform Score Card

Ah, spring, the time when the hearts of many turn to . . . baseball. Many of us are consumed by Vernal Equinox Related Mental Instability, but others are excited for the more traditional Opening Day. Conveniently, the first full slate of games for America’s Pastime coincides with rather important oral argument before the Supreme Court. 

Just as the fast-paced action of your favorite sport sometimes requires a program or - better yet - a score card to keep track of the action, the (relatively) fast-paced action of patent reform may well benefit from a score card to keep track of the numerous moving parts. For those of you keeping track at your home or office, the most direct potential changes to patent law are coming from court cases, proposed legislation in Congress, and initiatives in the executive branch. Subtler forces potentially influencing patent law can be found in the Judicial Conference (via proposed changes to the Federal Rules of Civil Procedure that could impact how patent infringement suits are started) and the states (via attorneys general and legislatures seeking to curb what they deem to be abusive patent infringement assertions). Even more subtly, the entire background of prior art is inexorably growing, not only in the sense of ever advancing and expanding technology, but also in the sense of an ever expanding ability to identify technology in an ever more digitized, networked, indexed, and searchable world.

To use this score card, there is no need to remember that Who’s on First or that he is designated with the number 3 for scoring purposes. Simply find the proper entity and case, legislative proposal, or other player in the left hand column. In the most basic situation, one of the columns in the middle of the score card may be marked to indicate whether a player has made patents stronger or weaker, or had a neutral impact on patent strength. A notes column allows the inevitable borderline scenarios to be described more clearly. As Medtronic v. Boston Scientific has already been decided, the score card already notes that the ultimate effect of the Court decision was neutral, as the burden of persuasion of infringement remained (as most commentators suspected it would) with the patentee in declaratory judgment actions brought by a licensee. The score card provides lines for the cases currently pending before the Supreme Court and the main types of legislation pending in Congress, with lines provided to fill in the major decisions from the Federal Circuit Court of Appeals and the District Courts in the months to come.

Hope springs eternal, particularly in Spring when every team is tied for first in their division with a magic number of 162 to clinch a playoff spot. In patent law, perhaps we can all be as optimistic.