Posts Tagged: "IPR"

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.

While all job creation is valuable to continued economic growth and development, high-skilled, well-paying jobs are the most impactful for sustained economic progress. Evidence suggests that intellectual property (IP) intensive industries are critical to economic growth and vital to national well-being and global competitiveness. Pham (2010) analyzes the role of innovation and the impact of intellectual property rights on U.S. productivity, competitiveness, jobs, wages and exports. His results clearly point to the importance of IP-intensive industries to economic prosperity.

Inter partes review proceedings unconstitutionally assign to an Article I executive branch tribunal matters reserved for Article III Judges that make up the Federal Judiciary. This is in violation of Separation of Powers principles, which is particularly problematic given that we are talking about property rights being stripped from patent owners by administrative law judges in a proceeding designed to be a district court alternative. These administrative tribunals also adjudicate patent validity without a jury, in violation of patentees’ Seventh Amendment rights.

There has been tremendous growth in the post-grant review system. But that growth is perhaps disproportionately driven by top filers. In both 2013 and 2014 almost a quarter of all IPRs were filed by the top ten petitioners that year. Among those top petitioners are many names you would expect to see including Apple, Samsung, Google, and Microsoft. However, having the system driven by a few major players is not necessarily beneficial, as it can leave behind smaller but still important actors.

The issue of proper due process is critical, according to Johnson, because “the PTAB is now both deciding on the institution of and the conduct of these IPRs and PGRs, and of course, they’re issuing the final decisions.” There is no doubt that given their outsized authority, the way the PTAB has evolved is reminiscent of a tribunal that acts as judge, jury, and executioner. At times I am also reminded of the old Westerns where a particularly vile villain would be apprehended. The crowd would scream for him to be hanged and some law abiding Sheriff would appear and say something like: “No! We are going to give this man a fair trial and then we are going to hang him!”

Writing for the panel majority, Judge Dyk, who was joined by Judge Clevenger, explained that regardless of whether the USPTO properly should have instituted an IPR, the decision of the USPTO could not be reviewed or challenged even after a completed IPR proceeding. Further, the CAFC found that the broadest reasonable interpretation standard is appropriate in IPR. Judge Newman dissented.

The challenges to the global IP system, however, go much, much deeper than mere debates over so-called patent trolls or patent quality. The very premises of our intellectual property laws — the economic value of the intellectual property system itself — are now in deep dispute, not only in the U.S. but worldwide. Indeed, global anti-IP sentiment seems to be at its highest level since the late 1860s, when opponents of intellectual property rights succeeded — for a time, at least — in abolishing or weakening the patent systems of several nations around the world.

Between September 16, 2012, and August 7, 2014, there were 1793 post grant challenges instituted. See USPTO PTAB Update, slide 5. Of those challenges 1,585 (or just over 88%) were inter partes reviews. There have been 201 covered business method challenges, 6 derivation proceedings and only a single post grant review… Prior to enactment of the AIA it was believed that bio/pharma would largely be spared from post grant challenges. Biotech and pharmaceutical companies tend to have fewer patents and do not collect patents in the same way that electronics and software companies do. Furthermore, biotech and pharma patents tend to be more detailed and overall of a higher quality than your average patent. Given the relatively few patents that these companies hold that cover core assets even 5.2% of post grant challenges coming from the bio/pharma space is surprising. No patents are safe from post grant challenge it seems.

Generally speaking, “intellectual property” is probably best thought of (at least form a conceptual standpoint) as creations of the mind that are given the legal rights often associated with real or personal property. The rights that are obtained by the creator are a function of statutory law (i.e., law created by the legislature). These statutes may be federal or state laws, or in some instance both federal and state law govern various aspect of a single type of intellectual property. The term intellectual property itself is now commonly used to refer to the bundle of rights conferred by each of the following fields of law: (1) patent law; (2) copyright law; (3) trade secret law; (4) the right of publicity; and (5) trademark and unfair competition law.