Each year, I ask a panel of industry experts to make predictions for the upcoming year, and to identify particular news, stories or events they will be watching with interest. See Predictions for 2018 and Topics to Watch in 2018.
Given that several industry insiders were willing to make their own predictions, it seems only fair for me to likewise go out on a limb and make my own predictions.
First, I predict that the United States Supreme Court will find post grant procedures under the America Invents Act to be unconstitutional. It is my belief they took Oil States not as a patent case, but rather as an Administrative State case, and if that is correct, this could be the first in a series of decisions over a number of years that will pull authority back from the growing Administrative State and toward the Judiciary.
Second, in the event the Supreme Court does not declare post grant challenges unconstitutional, I predict the new USPTO Director will substantially modify PTAB rules and procedures, making them more fair and balanced.
Third, again assuming my first prediction is incorrect, I predict the PTAB will continue to ignore Eleventh Amendment immunity and will likewise rule Indian Tribes do not deserve to claim sovereign immunity when in front of the PTAB. This will set up a showdown at the Federal Circuit that will ultimately be settled by the Supreme Court, likely in 2019.
Finally, I predict there will be continued discussion about patent reform, with the conversation becoming increasingly pro-patent as Members of Congress continue to see undeniable proof that the U.S. patent system is regressing while the patent systems of the EU and China are on the rise. More specifically, I predict that the U.S. will fall out of the top 10 for patent protection in the annual Chamber IP Index, which will send a shockwave through the Capitol.
With respect to topics to watch in 2018, I asked the panel of experts surveyed to feel free to mention something other than Oil States v. Green Energy, which depending on the ruling, could easily be the biggest story in the patent industry over the last generation (perhaps several generations).
Following my own advice and anticipating that everyone reading understands the importance of Oil States, the issues I will be watching in 2018 other than Oil States are as follows: (1) What does the new Director of the USPTO do with respect to reforming the PTAB? (2) Will the USPTO adopt a code of judicial ethics for PTAB judges? (3) Will the U.S. drop out of the top 10 countries for patent protection in the annual U.S. Chamber IP Index? (4) How will the Federal Circuit resolve Eleventh Amendment sovereign immunity and the assertion of sovereign immunity by Indian Tribes? (5) Will the Federal Circuit continue its unprecedented disposition of cases without an opinion by relying on Rule 36 summary affirmance? (6) Will Conservative groups become even more vocal advocates of a strong patent system?
So what are your predictions? What will you be watching in 2018? Please feel free to leave a comment and let us know.
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