Friday, February 1, 2013

Recent and Upcoming Developments in Patent Law

GUEST AUTHORJosh Engel, Dorsey & Whitney LLP

    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. 
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EDITOR'S NOTE - Many thanks to Josh Engel for providing this piece for use on the Point of Novelty!

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