Much Ado About Injunctions

It’s become an article of faith among those complaining that patent reform has gone too far that the 2006 eBay case must be overturned—but that assertion doesn't appear to be backed up by the facts.

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Granted In 19 Hours

Patent examiners have an extremely hard job.  They’re given a patent application—which could be anywhere from a page long up to hundreds of pages, with patent claims ranging from a…

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The Pat-Signal Is Going Dark—Senator Leahy Won’t Seek Re-Election

Senator Patrick Leahy (D-VT) has announced that he won’t be seeking re-election to the Senate for a ninth term.  First elected in 1974, Senator Leahy has spent nearly 50 years in the Senate, focused on a wide variety of issues.  Intellectual property is one of those issues, and it’s an issue where he’s been a leader in the Senate, addressing issues in patent, copyright, and trademark law, and even creating the semiconductor mask protection system.  (He also helped out with a couple Batman movies in between.)

But perhaps most importantly, Senator Leahy sponsored the most significant reform of the patent system in the past 50 years—the bill bearing his name, the Leahy-Smith America Invents Act.  The AIA created the post-grant review system, including inter partes review, updated litigation rules to limit the ability of non-practicing entities to engage in abusive litigation, changed the U.S. to a first-inventor-to-file system, and updated the law of prior art to reflect an increasingly global innovation environment.

And it worked—it worked extremely well.  NPE patent litigation cost and frequency began to drop significantly, even while operating companies litigated at roughly the same rates.  Chilling effects on startups were reduced as they found a mechanism to defend themselves without the huge expense of full-scale litigation.

But then something changed.  The PTAB implemented discretionary denials, among other changes that made it harder to access IPR and made IPR a more expensive and complex procedure.  And, unsurprisingly, the AIA’s benefits began to reverse—mostly to the benefit of NPEs.

Earlier this year, reviewing the damage done to one of his signature achievements, Sen. Leahy—alongside Sen. Cornyn (R-TX)—introduced the Restoring the America Invents Act to repair the scuttled vessel of IPR.  That leaves a little over a year for Congress to consider passing RAIA before Sen. Leahy takes a well-deserved retirement.

Restoring the America Invents Act to the vision Leahy intended by passing his final patent bill would be a fitting closing act in Leahy’s story as America’s chief patent legislator.

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Widespread Support for IEEE 2015 Patent Policy

In 2015, the IEEE made changes to its Patent Policy for standard-essential patents (SEPs).  Among other things, that policy strongly disfavored seeking injunctive relief for SEPs because injunctive relief permits using the threat of enjoining an entire product to extract a royalty that covers more than the value contributed by the patent.  The policy also…

Arthrex, Mobility Workx, and Director Review at Institution

There’s been a fair amount of discussion regarding Judge Newman’s dissent in last week’s Mobility Workx case.  In Mobility Workx, a divided panel of the Federal Circuit rejected a variety of constitutional challenges to the Patent Trial and Appeal Board (PTAB).  Judges Dyk and Schall, in the majority, found no merit in the due process…

Leahy and Cornyn Introduce Bill To Restore The America Invents Act

Yesterday, Senate Judiciary IP Subcommittee Chair Sen. Leahy (D-VT) and committee member Sen. Cornyn (R-TX) introduced the Restoring the America Invents Act (RAIA).  RAIA would roll back changes introduced by former USPTO Director Andrei Iancu and by the courts, restoring the America Invents Act (AIA) to what it was always intended to be—a cost-effective alternative…