As is the case with any transition between administrations, the shift from President Obama’s to President Trump’s has resulted in new priorities for the United States Patent and Trademark Office.
What changes can we expect over the next few years?
We may see the USPTO revisit suggestions for forming a small claims court for patent enforcement.
A key issue for rightsholders and patent advocates is that patent litigation is far too expensive, particularly for small markets. For cases worth less than $1 million, litigation costs an average of $2.8 million. This is obviously unreasonable.
Since the early 1990s, the American Bar Association and other policy groups have raised the idea of creating a ‘patent small claims court.’ This would allow rightsholders to pursue infringers for damages, without having to risk spending more in court costs than the compensation being sought, while also alleviating pressure on impacted patent courts.
These discussions became serious enough that the USPTO began working on a study to examine this idea in more detail. However, the study was never completed. In the meantime, legislation such as the CASE Act has been proposed to create a dedicated venue for patent cases involving minimal damages.
As of yet, nothing has changed. But don’t be surprised if this discussion is reignited in the near future.
Recent statements made by USPTO Director Iancu suggests that there will be an emphasis going forward on making patent enforcement litigation less complex and expensive.
In recent years, patent litigation has become increasingly complex and riddled with contradictory rulings, and the increasingly commonplace cancelation of challenged patents by the USPTO.
All of this has made protecting patents from challenges and infringement increasingly costly and impractical. But at this year’s Patent Policy Conference, hosted by the U.S. Chamber of Commerce, Iancu noted that “Through our administration of the patent laws, which we are charged to execute, the USPTO can lead, not just react to every new case the courts issue.”
Iancu’s concerns were reflected in comments made by Jamie Simpson, the Patent Office’s counsel detailee to the Senate Judiciary Committee, when she spoke of an overemphasis on issues revolving around patent trolls: “In Congress, the narrative of the patent troll is wrong, it overlooks the huge role patents play in investment.” She continued, “We should focus less on the sliver of abuse and more on improving the broader patent environment.”
Rightsholders should start investing more in their IP, as patents will likely have increased worth in the near future.
The USPTO seems to be very keen on only granting patents that can pass muster, and are more defensible. This will shift the balance of power from alleged infringers and those looking to invalidate seemingly weak patents. Rightsholders should anticipate that their intellectual property will become increasingly defensible and valuable, and will be able to more readily take the offensive in court.
Would-be infringers will likely need to be much more cautious. If infringement has already taken place, it may be wise for infringers to seek a licensing arrangement, rather than wait for courts to handle the matter.
Everyone involved is recommended to keep a close eye on the legal environment for patents plays out, and how likely it is that Congress acts to change key laws. At the Law Office of Michael O’Brien, we believe in taking a proactive approach to finding strategies for strengthening and protecting patent rights. For more information, contact us today by calling (916) 760-8265, or by sending us a message using our contact form.