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Congress has failed to fulfill its constitutional mandate to protect intellectual property. In the resulting vacuum, many of the major reforms to patent policy has come from court decisions. The next major decision expected will likely involve the constitutionality of inter partes review (IPR) that was introduced with the American Invents Act of 2011. IPR enables third parties to challenge the validity of patents based on prior art evidence to an internal patent office board. Prior art is vaguely defined but can encompass any and all knowledge, products, previous patents, or publications that demonstrate use of the claims in the challenged patent before that patent was filed. IPR has led to an increase of challenges to the validity of patents. Opponents of IPR claim it harms small businesses and individual inventors by decreasing intellectual property rights. IPR has made it cheaper and easier to challenge patent claims without increasing the number of patents being invalidated.
Regulatory Challenges for Innovation Policy (Blog Post) (view source)
Revision as of 17:58, 14 November 2016
, 17:58, 14 November 2016no edit summary
Pending legislation, chiefly the Innovation Act and PATENT (Promoting American Talent and Entrepreneurship) Act, continues this unnecessary focus on fighting trolls, while doing little to resolve other issues regarding the patent system. Both the Innovation Act, introduced by Rep. Goodlatte of Virginia, and the PATENT act, introduced by Sen. Grassley of Iowa, fail to distinguish between Patent Assertion Entities (trolls) and NPEs, of which PAE’s are a subset. While many PAE’s are bad actors who only enforce patents to financial gain without innovating themselves, NPEs include small businesses and individual inventors who want to protect and license their intellectual property. Rather than reducing the threat that PAEs pose to small businesses, these bills will unfairly benefit large established corporations while harming small businesses. While this legislation may move forward in the next Congress, neither bill has made progress since moving out of committee.
MCM Portfolio LLC vs Hewlett-Packard, is pending petition from the Supreme Court and can be expected to be heard sometime before the end of 2017. This case calls into question whether IPR violates Article III of the constitution and if it violates the 7th amendment. The Article III issue arises since IPR is conducted before the Patent Trial and Appeal Board, an administrative division of the USPTO, rather than before federal judges in court. Following from this, the 7th Amendment, which guarantees a right to trial by jury, is claimed to be violated during the IPR process as there is no trial nor jury.
