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.

An End of an Era?

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.

Innovation Act of 2013

The patent-related news corners of the internet have been busy discussing the Innovation Act of 2013 [pdf] for the past few days. The objective of the Act seems to be to ‘kill trolls’ through changes such as requiring particular pleading of the alleged infringement in complaints, limiting discovery in infringement cases until claim construction has been completed, and making the losing party responsible for the prevailing party’s attorney fees more often. The conventional wisdom is that these proposals will pass in some form. While the proposed changes have far more to do with patent litigation than patent prosecution, anything that changes how patents are used should be considered in the process of obtaining patents.