Each year over on IPWatchdog.com, I do a series of articles that wrap up the year and lead us into the new year, hopefully feeling optimistic and energized. This year, I decided to reach out to some of the folks I know in the industry and ask for their idea on what the biggest moments were in 2012 for the world of intellectual property. See Biggest Moments in IP for 2012.
Bob Stoll (former Commissioner for Patents at the USPTO, currently at Drinker Biddle) and Stephen Kunin (Oblon Spivak) reflected on the AIA, and a variety of other matters to provide a fairly comprehensive listing of the biggest moments for patents and patent law over the last 12 months.
With respect to the Supreme Court trying to put its imprint on patent law, this is what Stoll had to say:
Patent law was also the subject of significant judicial shaping during 2012. Near the end of the year, the Supreme Court granted cert on AMP v. Myriad which calls into question the patentability of isolated genes. The Supreme Court decision in that case during 2013 is widely expected to further narrow the scope of patent eligible subject matter. Earlier in the spring of 2012 the Supreme Court had decided Mayo v Prometheus which reviewed the boundary between patent eligible methods and laws of nature. It is notable that the Court seemed to analyze the patent eligibility issues under 35 USC 101 using obvious standards more appropriate under 35 USC 103.
Steve Kunin took a different approach. He offered a top 10 list a la David Letterman. #1 and #2 were AIA implementation and the Supreme Court taking Myriad. #3 through #10 were each important cases. They were (without his explanations):
10. In re Staats, 671 F.3d 1350 (Fed. Cir. 2012).
9. Aventis Pharma S.A. v. Hospira, 675 F.3d 1324 (Fed. Cir, 2012).
8 Marine Polymer Technologies, Inc. v. Hemcon, Inc., 672 F.3d 1350 (Fed. Cir. 2012) (en banc).
7. Caraco Pharmaceutical Laboratories, Ltd. v. Novo Nordisk A/S, 132 S.Ct. 1670 (2012).
6. Momenta Pharmaceuticals, Inc. v. Amphastar Pharmaceuticals, Inc., 686 F.3d 1348 (Fed.Cir. 2012).
5. Akamai Techs., Inc. v. Limelight Networks, Inc,, 692 F.3d 1301 (Fed. Cir. 2012) (en banc), superseding 629 F.3d 1311 (Fed. Cir. 2010).
4. Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S.Ct. 1289 (2012).
3. CLS Bank International v. Alice Corp. PTY Ltd., 2012 WL 4784336 (October 9, 2012).
Yes, the implementation of the AIA has been smooth and the volumes of rules promulgated in proposed and then final form enormous. Yes, the Supreme Court continues to stick its nose into the patent field and do what I can only characterize as mischief. Yes, the Federal Circuit has already slumped backwards on inequitable conduct and disagreed with itself over the patent eligibility of software. All of these rightfully deserve to be on the table for discussion.
But for me the biggest story for 2012 wasn’t a singular event or case. For me the biggest story for 2012 is that there is a continuing erosion of the value of patent ownership. Whether it is through the Supreme Court capriciously ignoring the Patent Act and doing what the statute prevents in Mayo, or the constant fight presented by software patent eligibility, which fails to recognize that software is what makes the computer and our devices both “smart” and usable. Whether it is the constant lobbying of the Silicon Valley elite to chip away at the jurisdiction of the International Trade Commission. Whether it is district court after district court refusing permanent injunctions and never considering that the patent itself is a right to exclude.
The common thread between what I see as the biggest news stories item by item is that ownership of patents becomes less certain, rights obtained are more fragile and easier to challenge, and even when victorious, we largely have moved to a compulsive licensing regime. Thus, the pendulum is swinging, and swinging fast, in the direction away from strong property rights. That is unfortunate and, if unchecked, will lead to a further erosion of the U.S. economy.