Posts in Guest Contributors

Even if one disregards the categorical distinctions between over-ruling the ITC order and foreign compulsory licenses, there are differences in the specifics as well. For example, the Administration’s decision rested heavily on the fact that the patent being violated was part of an industry standard. A patent that is critical to an industry standard can convey market power (and possibly monopoly power) on that patent holder. The Administration focused on and justified its decision based on avoiding abuse of that market power. Patents on medicine are completely different. There is rigorous competition, new medicines can be invented to treat the same malady, and there is no need for the types of industry standards that are more common in electronics. But it is those health care patents that foreign governments are undermining.

“Patent trolls have a surprising ally: universities” ran in the Washington Post on November 30, 2013. Two days later “Techdirt” threw the follow up: “Patenting University Research Has Been A Dismal Failure, Enabling Patent Trolling. It’s Time to Stop.” Their titles and parallel arguments suggest that both articles arise from shared talking points. Both immediately set up their victims by linking them with patent trolls. Casting anyone as an “ally of patent trolls” after huge amounts of money have been invested vilifying the term in the public mind is meant to quickly knock opponents to their knees and drive them from the field. Ostensibly the focus of their wrath is university patent licensing, but the real target is the patent system itself.

Open Market grew rapidly, went public, made acquisitions, and outlived about 15 of its competitors, but was hit hard by the bursting of Internet Bubble 1.0 in 2000. The eCommerce software part of Open Market’s business, called “Transact”, and the related patents were acquired in 2003 by Soverain Software, which still develops and supports Transact and its customers today. Soverain also filed a number of patent lawsuits, and settled or won all of them, up until this year. On September 4, the United States Court of Appeals for the Federal Circuit (CAFC), which is the appeals court responsible for patent cases, confirmed its January opinion that certain claims of the ‘314 patent (and some others) were invalid as obvious. Soverain has filed a petition for the case to be heard by the Supreme Court, and I hope it is accepted, because I think the CAFC got it really wrong.

2013 turned out to be a very big year for IP, and especially patents, and the year took a course that few would have predicted this time last year. At that time, the senior team at the PTO was primarily focused on the imminent departure of our then-boss, David Kappos, and the end of what had clearly been an extraordinarily active and successful tenure. The AIA had been almost entirely implemented, the new Patent Trial and Appeal Board was up and running, and most of us expected 2013 to be focused on implementation and execution of the AIA and the other initiatives that had been set in motion under Director Kappos.

Federal Circuit Chief Judge Rader recently delivered an important and noteworthy defense of the U.S. patent system the recent annual meeting of the Association of University Technology Managers (AUTM). His ideas have merit, but let’s not presume that patent litigation reform is all that is needed or all that can be done to help. I believe that Chief Judge Rader and other patent system users should focus on additional reforms that could contribute in a substantive way.