Typically, laws change very little.
In most regards, the law is an edifice—stable, unchanging, unmoving. The remedies for trespassing on someone’s property have been the same for about 600 years. Robbery and its consequences hasn’t changed much in centuries (though you’re a bit less likely to hang these days).
Typically, laws change a lot when the central concept in question is relatively new, and courts don’t quite have a handle on things. This will often prompt the legislature to respond, and in turn the courts will interpret these changes.
When local and state governments failed to appreciate that with the end of slavery, African-Americans were deserving of the full complement of rights detailed in the Constitution and Bill of Rights, the Civil Rights Act of 1964.
When it was apparent that businesses which offered employees pension and health benefit plans often didn’t disclose pertinent information, had onerous vesting requirements, or were leaving ex-employees destitute when insufficiently funded pensions failed, the Employee Retirement Income Security Act of 1974 was enacted.
Significant changes in the law occur in order to fill newly discovered omissions, issues that are novel and thus aren’t adequately addressed by the law. But otherwise, established law typically changes very little.
However, patent law has been an incredibly volatile exception.
The Patent Act is quite an outlier when it comes to the stability of American law. Provisions that have been around for a century or more are regularly subjected to confusing, contradictory interpretations that throw established precedent into upheaval.
The Congress worsens the matter by changing parts of the law that are not really subject to any sort of controversy, further muddling things. As a result, one of the largest variables in patent law is that both the law, and court interpretations of the law are subject to significant changes over the twenty-year lifespan of a patent. The ebb and flow of patent rights poses a significant risk to inventors.
Thankfully, the pendulum is swinging back in the direction of inventors, with the current trend emphasizing a need for stronger patent rights.
The STRONGER Patents Act has the potential to improve patent protection for inventors.
On March 22nd, 2018, Representative Steve Stivers of Ohio and Representative Bill Foster of Illinois introduced the awkwardly titled “Support Technology and Research for Our Nation’s Growth and Economic Resilience Patents Act,” mercifully abbreviated as the “STRONGER Patents Act.”
In short, the act addresses a disparity between the standards used by the USPTO and district courts—district courts require significantly more proof to invalidate a patent than does the do inter partes reviews (IPRs) conducted by the Patent Office. When some contests a patent in an IPR, they only need to demonstrate better than even odds of being correct in their allegations (51%). But federal courts set a much higher standard of approximately 70% likelihood. The STRONGER Patents Act would require the USPTO to adopt the higher burden of proof currently used by district courts.
The act would also make it easier to amend claims during an IPR or the post grant review (PGR) process in order to address minor problems that could otherwise invalidate a patent.
In addition, it would become easier for patent owners to obtain court injunctions halting the sale of products infringing on their patents. It would also take steps to limit patent trolling, in the form of frivolous or fraudulent demand letters alleging patent infringement, by giving the FTC the power to enforce against such actions.
Lastly, it would help to streamline the litigation process by making it clear that losing in an IPR or PGR would also mean an automatic loss in federal court—a matter which is currently under debate.
As should be evident, accurately interpreting the current legal landscape of patent law requires the attention of a patent attorney with extensive experience and expertise. If you need help with a patent issue, the Law Office of Michael O’Brien can help. For more information, contact us today by calling (916) 760-8265, or by filling out our contact form.