Posts Tagged: "aia"

Simply stated, Senator Ted Cruz (R-TX) did not deserve the F foisted on him by the Engine study or amplified by the reporting by Wired and Ars Technica. Notwithstanding the inexplicable F given to Senator Cruz, the biggest error in the “report card” related to something that never happened. Senator Marco Rubio was given a B based on his vote in favor of the America Invents Act (AIA). The problem is that Senator Rubio missed that vote on the AIA and is also on record saying that had he been present he would have voted against the AIA. Indeed, there are many other inaccuracies and misleading statements that collectively left us wondering if the scoring of this “report card” intentionally misleads the public and reinforces the stereotype that the tech community only likes Democrats.

In 2008 the surrogates did at least increase the emphasis on having some form of post grant challenge procedure in the bill that would pass Congress and be signed into law. Their work began to surface in March 2008 by way of surrogates speaking at public and private events focused on innovation related issues. While the campaigns today may not spend many bytes on patent policy soon enough surrogates will be convening at events around the country to discuss innovation policies. If innovation policies or broader tech issues matter the time to get involved is now. As the field of candidates continues to narrow it will become increasingly more difficult, and more costly, to influence policy.

The Patent Act itself clearly and unambiguously states that patents are property. See 35 U.S.C. 261. Unfortunately, this property right of Constitutional significance has increasingly come under attack over the last decade. Without either substantial legislative fixes, or a new Administration that orders a new Director of the USPTO to rewrite post grant regulations, no single case could undue the significant damage that has been done to the U.S. patent system by the creation of the PTAB and post grant proceedings. That being said, Cuozzo does offer an excellent opportunity to say enough is enough and fight to protect a Constitutionally critical property right our most respected Founding Fathers thought to be absolutely critical.

For hoarders, once an item comes into their possession, such individuals develop an unreasonable emotional attachment to it. As these possessions, many of which are viewed by others as worthless, continue to accumulate, they become both a health and safety hazard to the hoarders and those about them until some concerned party, typically a family member or a governmental authority, intervenes. Much the same problem is found in some managers of patent portfolios.

When people say that inventors do not need to start with a patent application and can wait to file I cringe. It is not that this is universally bad advice, but it certainly comes with a lot of risk, even more risk now that the United States is a first to file country with only an infinitesimally small grace period remaining. Today it is imperative that the U.S. first to file laws be interpreted to mean file first before you disclose anything, demonstrate your invention publicly or offer it for sale. The risk of waiting to file a patent application is simply too great and may forever foreclose the ability to obtain a patent.

Libertarians believe in property rights and government protection of those rights as one of the few necessary requirements of government. Ownership of property and free markets leads to competitive production and trade of goods, which in turn leads to prosperity for all of society. Intellectual property is property like other forms of property, and so government must protect IP as it protects other forms of property because it too leads to competition and trade and prosperity. Libertarians should encourage a strong patent system and object to any “reforms” that limit intellectual property ownership or introduce more government regulation than is required.

A patent litigator knows the ultimate truth about patents: their real value is only revealed in the gauntlet of litigation. In a bygone era, patents were reputed to have a statutory presumption of validity, the power to exclude by way of injunction, and the capacity to yield treble damages if an accused infringer were so wanton as to disregard a notice letter and fail to obtain an opinion of counsel. It was often unnecessary for a patent holder to flex its muscle by bringing suit to enforce its intellectual property rights. Instead, the arms-length Georgia-Pacific theoretical license negotiation might well have occurred even before the commencement of any infringement. Those days are over.

The patent market had an amazing bull run from the late 1980’s through 2012. The peak was 2011 to 2012 when we saw a number of multi-billion dollar patent sales and patent-driven acquisitions. The patent market started slowing down substantially shortly thereafter. Many blame the America Invents Act (AIA), which introduced a variety of ways to inexpensively challenge the validity of patents in administrative proceedings at the patent office. All of a sudden the confidence that once a patent was issued it was valid was shaken. However, the AIA was only part of the problem.

3D printed human organs are coming increasingly close to being a reality according to several reports. In addition to potentially saving thousands of lives every year, this ground-breaking technology raises issues related to patent law that cannot be ignored. Are human organs and/or tissues that are created through 3D printing process that use naturally-occurring cells eligible for patenting? Or are such organs and tissues considered to be products of nature and therefore ineligible for patenting? The America Invents Act (AIA) creates serious questions, as do some recent Supreme Court ruling on patent eligibility.

Because the AIA does make foreign priority claims relevant, the USPTO will now require that any correction of the identification of the foreign application (by application number, country, intellectual property authority, and filing date) in a foreign priority claim after the time period for filing a priority or benefit claim be via a petition to accept an unintentionally delayed priority claim. Once the petition is granted in a pending application there will be a publication of a corrected patent application publication reflecting the accurate foreign priority claim information.

The market price plummeted in the second half of 2011, and set off the downward spiral that stormed through the second half of 2013 when the market price reached the record low. There had been no discernible macroeconomic factors to justify the drastic decline in market price during the two years leading up to the end of 2013. As a result, the industry-specific factors might have been the culprit, among which the most prominent is the enacting of America Invents Act (AIA) in September 2011, as demonstrated by the econometric analysis above.

Mr. Oliver strongly misses the mark. It is not trial lawyers who are blocking the Innovation Act, as Mr. Oliver claims. Rather, it is a large swath of the technology community — from universities, to technology companies, to small businesses, to professors, and even venture capitalists — who understand that many innovators are now at a breaking point when it comes to patent rights and that the potential for further unintended consequences via additional reform is just too great. So, in the end, no matter what side of the patent debate you are on, let’s remember that our patent system is a vastly complex, finely tuned equilibrium. While market realities require adjustments from time to time, going too far in either direction will cause devastating consequences for large swaths of businesses.

Time and time again throughout the legislative history post grant proceedings were explained as being a faster, low-cost alternative to litigating validity disputes in Federal District Court. That being the case, it would seem extremely odd that any petitioner could bring a post grant challenge to a patent when that petitioner would not have standing to sue to invalidate the patent in Federal District Court. However, the statute does say that a person other than the patent owner can file a petition to institute an inter partes review.

The immediate modification to the page limits for motions to amend is more in line with reality given the high burdens placed on patent owners. Even when patent owners sought additional pages, the norm was a three to five page extension. So getting ten extra pages is a welcome change. Changing the page limits, alone, is unlikely to impact the calculus underlying the strategic choice to amend. But when the choice is made to amend, patent owners will be better able to meet their burden.

In 2014 there were 1,070 fewer patent lawsuits filed than during 2013. Furthermore, the number of patent cases filed in 2014 was lower than the number of cases filed in 2012 by some 433 cases. Therefore, the stories of continued run away litigation seem to be greatly exaggerated. Given the dramatic decrease in patent litigation it seems entirely premature for Congress to be considering additional patent reform at this early stage.