Friday, December 30, 2016

IP Watchdog - The Four Consequential Patent Trends of 2016 - Brief Comment

In the IP Watchdog article, The Four Consequential Patent Trends of 2016, Steve Brachmann highlights some key trends in the US patent system today.

The article notes that the FTC Report - Patent Assertion Entity and the decline in patent litigation in 2016 discredit the patent troll narrative, but the media is still lagging on the truth. It notes China and the US have patent systems moving in opposite directions given China's decision to open the door to software and business method patenting, and the Federal Circuit has frustrated patent owners on issues arising from the PTAB trials.

My brief comment is Congress might considering addressing these trends in 2017:

Congress may or may not need more patent reform, but it shouldn't amend any patent law based on the false patent troll narrative. For example, Congress should read the FTC report which among other things, debunks the "patent troll" label as prejudicial. Journalists often have tight deadlines that run counter to rigorous fact investigation. The lobbyists and other hired guns help special interests rather than illuminate journalists. We need laws that strengthen the US economy not certain big tech companies.

Instead of being surprised how China is moving forward with software and business method patenting, Congress should amend the language of 35 USC 101 to clarify the patent-eligible standard for software inventions. Allowance of US software applications should not rest on a patent eligibility test that arguably nobody fully understands. Patentability of software related inventions should return to primarily an examination of prior art.

Practitioners can invalidate patents in the USPTO at lower cost than in court, but the Patent Trial and Appeal Board (PTAB) rules currently tilt the procedure in favor of patent challengers. This is a large topic, but one example is PTAB accords claims the broadest reasonable interpretation, a standard premised on an ability to amend claims, but implements rules that make it nearly impossible to amend claims. Congress should level the playing field of the PTAB trials.

Large entities have successful pushed for a weaker US patent system that permits efficient infringement. Thus, a small entity cannot reliably stop misappropriation of its inventions. But a weaker patent system does not discriminate. Large entities that worked so hard to weaken patents are now more vulnerable to free riders who have no real reason to stop infringing.

Copyright © 2016 Robert Moll. All rights reserved.