Matthew Dowd is Founder and Managing Partner at Dowd Scheffel PLLC. He focuses his skills on complex appellate and trial litigation, with an emphasis on patent and intellectual property issues. Through his years of practice, Mr. Dowd has successfully worked on numerous high-stakes and eclectic legal matters, focusing primarily on all stages of complex patent matters (AIA proceedings, litigation, prosecution, and counseling). Mr. Dowd’s expertise and leadership are regularly consulted, as he is frequently asked to comment in the press on leading intellectual property issues.
Mr. Dowd has substantial experience with Hatch-Waxman litigation, including all stages of opinion analysis, litigation, and appeals. His technical background in medicinal chemistry is ideally suited for litigating pharmaceutical patents. He has represented clients in a range of trial forums for patent disputes, such as the Eastern District of Texas and the District of Delaware, as well as the Patent Trial and Appeal Board at the USPTO.
He has argued appeals before the U.S. Court of Appeals for the Federal Circuit, the Ninth Circuit, and the D.C. Circuit, with over fifteen appeals (and briefed numerous others) before the Federal Circuit and other courts involving issues such as patent law, Hatch-Waxman, administrative law, Fifth Amendment takings, contract claims, government employment issues, and criminal law. Most recently, in 2018, Mr. Dowd was co-counsel with the Hon. Richard Posner (ret.) of U.S. Court of Appeals for the Seventh Circuit in an appeal before the U.S. Court of Appeals for the Fourth Circuit.
The current unreliability of patent-eligibility law, documented thus far here, here and here, has also created undue burdens on litigants and the courts. In this final installment, we detail how the current unreliability burdens litigants and the courts and how it is a fundamental threat to U.S. competitiveness and national security. Patent infringers now routinely raise Section 101 as a defense, often merely as a strategy to complicate and prolong the litigation, rather than as a good-faith defense with a likelihood of success. For example, one analysis found that, from 2012 to 2014 (when Alice was decided), Section 101 was raised in just two Rule 12(b)(6) motions across the country each year. In the year after Alice, that number rose to 36 motions, and by 2019, accused infringers were filing over 100 such motions each year.
Systemic-level studies and data regarding impact on investment and innovation, as detailed in Part II of this series, are not the only way to demonstrate the substantial harm that the current state of patent eligibility has inflicted on the U.S. innovation ecosystem. Other robust evidence shows that current Section 101 law has harmed innovation by removing the incentives to develop and commercialize particular inventions of public importance. As another form of harm, the vagueness and breadth of the Alice/Mayo framework have also enabled accused infringers to transmogrify Section 101 into a litigation weapon in inappropriate cases that has created unnecessary burdens and costs on innovators and the courts.
The muddled state of patent eligibility law has direct and significant negative consequences for U.S. R&D investment, and for innovation in key fields of medical, economic, and strategic importance to the United States and its citizens. Uncertainty reduces R&D investment, as has been well-documented, and reliable patent protection mitigates uncertainty and generates increased R&D investment. As we explained in Part I of this series, the experts overwhelmingly agree on these points.
Patent eligibility law in the United States is in a state of disarray that has led to inconsistent case decisions, deep uncertainty in the innovative, investment and legal communities, and unpredictable outcomes in patent prosecution and litigation. These facts have been extensively documented in multiple sources, including: the statements of all 12 active judges of the nation’s only patent court, the U.S. Court of Appeals for the Federal Circuit (confirmed prior to October 2021); the findings and reports of the Executive branch across all recent Administrations; the bi-partisan conclusions of Congressional committees; a robust body of academic studies; and at least forty separate witness statements at the 2019 hearings on this issue before the Senate Committee on the Judiciary Subcommittee on IP, including statements from advocates that oppose Section 101 reforms.