Here’s a look at some of the recent and
upcoming developments in the patent law realm in Q1 2013.
Patent
Litigation Update
Patent litigation continues to be very prevalent
and very contentious as companies in many different industries continue to sue
each other for infringement of each others’ patents. Beyond the Apple v. Samsung family of cases
that seem to dominate most media coverage of patent litigation, hundreds and
thousands of other patent infringement cases quietly move along in the
background. Marvell, a semiconductor
manufacturer, lost a patent lawsuit to Carnegie Mellon University in December
2012, and was ordered to pay $1,169,140,271 in damages, which may be tripled in
the end if Carnegie Mellon can show willfulness. The jury found that Marvell infringed just
two claims related to signal/noise processing in computer memory technology. Just a few months earlier, in August 2012,
Monsanto won a $1,000,000,000 award against DuPont for infringing Monsanto’s
patents on roundup-ready plant technology.
And, of course Apple was awarded $1,050,000,000 against Samsung in an
extremely contentious lawsuit over smartphone technology.
While these cases are clearly outliers, and
the vast majority of patents never become nearly so important, the trend of
patent litigation is increasing, and the need for companies to secure their own
patents for offensive use, as well as the need to be ready to defend against
competitors’ patents, continues to be vital for companies in technology-heavy
industries.
Patentable
Subject Matter
One of the most divisive issues in patent
law today is “what is patentable?”
Software and human-gene-related inventions are currently in the
cross-hairs, as the Federal Circuit (the appeals court that hears all
patent-related cases) and the US Supreme Court consider what types of
inventions should be eligible for patent protection. Software patents, in particular, have strong
proponents on both sides of the argument, with some arguing that mere computer
code should not be patentable because it is too ‘abstract’ and others arguing
that excluding patent protection for software would wreak havoc for nearly
every technology company that depends on patent laws to prevent competitors
from copying innovative system control inventions. Within the next few months, the Federal
Circuit will hear arguments and decide a case that will likely shape the
software patentability debate for years to come.
Upcoming –
Patent Law Changes Effective March 16, 2013
As part of the America Invents Act (AIA)
signed into law in 2011, on March 16, 2013, the United States will join the
rest of the world in having a “first-to-file” patent system. This is a change from our previous
“first-to-invent” system, and the most practical effect is that patent
applications filed after March 15 will be examined under a different set of
guidelines, at increased cost, and with more prior art available to the patent
office to reject patent applications.
There are also procedural changes for patent applications filed after
March 15, and new ways to challenge a granted patent. In general, the best practice is to file a
patent application before March 15, if at all possible, so that it gets
examined under the previous “first-to-invent” rules. After March 15, it will be all the more
important to be diligent in identifying patentable inventions and getting
applications for those inventions on file as quickly as possible. Any delay can result in a competitor winning
the “race to the patent office.”
Upcoming –
Unified European Patent
One of the most costly and complex regions
of the world in which to obtain and pursue patent protection, Europe, is likely
to get a facelift soon. In December 2012
the framework was set for implementation of a unified European patent, which
would streamline obtaining and enforcing patents throughout most of
Europe. Member states still must sign
onto the program, but at this point it looks like most all of Europe will
participate, with the notable exceptions of Spain and Italy (who will likely
dissent because the official languages of the unified patent, if you will, are
English, French, and German). The unified
patent program would eliminate or greatly reduce translation, validation, and
maintenance fee costs in each European country that presently cost patentees
thousands of dollars, and would also provide a common set of rules by which
European patents are examined and enforced.
--EDITOR'S NOTE - Many thanks to Josh Engel for providing this piece for use on the Point of Novelty!
