IP: Maybe we should let the dust settle or the swirling vortex of patent reform

Any good scientist would insist that we simply must give our new experiment some time to run

The patent realm includes many scientists, at least by training. Most of us have at least some recollection of a fundamental concept of scientific research: the controlled experiment. In such an experiment, the goal is to test just one variable by comparing the results of a control group to an experimental group where the only difference is that single variable. In a successful controlled experiment, it can be shown whether that particular change yielded the desired result or not. Oh how different is the turbulent evolution of the U.S. patent system. The question Corporate America, and really all stake-holders in the patent system, needs to ask is: Are we really already sure that more seismic changes are necessary and will be beneficial? And even if the answer is yes, how can we know yet what those changes should be?

The outcry for patent reform has been ringing for at least a decade. During that time we have seen sweeping changes to the patent system. The courts, for instance, have lowered the bar for finding patents invalid as obvious or for claiming unpatentable subject matter, curtailed damages and made them much harder to prove, made findings of willful infringement a rarity, drastically limited the availability of injunctions, and more. Not to be outdone, Congress, after many years of debate, finally passed the America Invents Act in 2011, significantly altering numerous aspects of patent prosecution and litigation. Among other things, the Act created a near first to file system, expanded prior art globally, prevented most alleged infringers from being sued together, and created patent office litigation to address validity and overall patent quality concerns.

Contributing Author

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Cyrus Morton

Cyrus Morton is the Chair of the Patent Office Trials Group at Robins, Kaplan, Miller & Ciresi L.L.P. which focuses on the new...

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