TechPats Attends Patent Law and Policy Conference in DC
This past Tuesday, members of the TechPats team, including Kevin Rieffel , Counsel, attended IAM’s Patent Law and Policy conference at the Ronald Reagan Center in Washington, DC. With the theme of “Courts, Congress, and the Monetization Landscape” and timeliness of occurring a week after the U.S. election, the focus of the speakers was on problems in patent and IP laws and policies and pathways to improvements in consistency.
The handful of panels that followed USPTO Director Lee’s opening keynote remarks included prominent professors, top corporate counsel, leading litigators, well-known writers, and a few former patent office directors. Throughout the day there were 3 key themes with regard to strengthening the patent system, bolstering IP value, and promoting continued innovation.
Recently a hot topic, competing bills in U.S. Congress regarding Patent Reform have taken a backseat. One reason for this could be the recent FTC report on “Patent Assertion Entity Activity” which addressed the issue of “patent trolls.” Most speakers acknowledged the impact of the FTC study as a positive framing of the conversation regarding litigation entities and portfolio entities and declaring the use of the words “trolls” as unproductive. While the problems of frivolous litigation and extorting demand letters have not fully vanished, the panels addressed recent changes in pleading standards, awarding attorney fees, and the ease of challenging patents with IPRs and under Alice as policies that have made the hurdles to patent assertion higher—regardless of a patent owner’s size or intentions.
On some of the panelists’ wishlists for next year were addressing subject matter eligibility under § 101 with better statutes and/or CAFC precedent, considerations in allowing juries to determine sections 102 and 103 validity issues, legislation to strengthen valid patents and discourage “efficient infringement,” and deep examination of venue shopping issues, especially with regard to the federal courts in Texas.
Inter Partes Review and the PTAB
Director Lee’s remarks referenced the Patent Trial and Appeal Board as a “valuable check on patent quality, particularly in the later part of a patent’s lifecycle” and set a tone for a discussion of the merits and difficulties of PTAB proceedings. The “patent death squad” narrative has survived despite improving statistics, but the conversations revolved around differing standards of proof, claim term interpretation, confirmation bias with institution and final decisions, rule-making authority by the director, as well as variations in levels of deference to alleged fact-finders at the examination or PTAB trial level.
The Trump Administration
On the heels of the big election, many attendees were contemplating how the new administration will handle Intellectual Property and patents. While the 2017 White House policy on patents seems to be fairly unpredictable at this point, no one expected drastic changes to come. Ideas that were discussed include how a populist-elected president would support small inventors and how a “Rust Belt” sentiment may affect patent policy. Also discussed was the potential for a new focus on pharmaceuticals over Silicon Valley. Nevertheless, without any concrete policies or speeches on patents coming from the president-elect’s team, any speculation for Mr. Trump being pro-IP came from his companies’ history of brand protection and campaign promises rooted in economic protectionism.