Patent Law Practice Center

U.S. falls out of top 10 patent systems according to U.S. Chamber report

The United States was once again the top-ranked country in overall score in the U.S. Chamber of Commerce’s annual Global IP Index for 2018, but the rankings are closer than ever. This year, the United States edged out the United Kingdom by a mere .01 points on the Chamber scale. The U.S. position was helped by improved scores relating to copyrights and trademarks, but was dragged down as the U.S. patent ranking decreased for the sixth consecutive year as the result of a patent climate that the Chamber characterizes as causing “considerable uncertainty for innovators.”

While the United States continues to do well overall, patent protection continues to be problematic. In 2017, the U.S. ranked 10th worldwide in terms of offering patent protection to innovators. This year, the U.S. fell out of the top 10, tumbling to a tie for 12th with Italy. Countries ahead of the United States for patent protection are (in order from first place on the Chamber patent index): Signapore, France, Germany, Ireland, Japan, Netherlands, South Korea, Spain, Sweden, Switzerland, and the United Kingdom. See page 35 of the Chamber report.

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Federal Circuit gives hope to patentees facing patent ineligibility challenges

The Federal Circuit recently issued an important decision in Berkheimer v. HP Inc. (Fed. Cir. Feb. 8, 2018) (Before Moore, Taranto, and Stoll, J.). Giving hope to patentees who own computer-implemented inventions, the Federal Circuit ruled that it is not always appropriate to declare the broadest independent claim to be representative, and also held that questions of fact underlie patent eligibility determinations, which makes summary judgment inappropriate in at least some cases.

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The Decline in Patent Contingency Litigation

There has been a steady decline in the number of contingency litigation law firms, attorneys, and even cases filed. This continues to greatly impact the intellectual property industry.

According to Paul Storm, a partner in Gardere’s Intellectual Property Practice, the decline in contingency representation over the last few years can be explained by weakened patents making success on the merits less likely. Even if the patent owner does prevail, what will they win? After a win at trial, the law of damages has made large damages less likely to achieve in the first place, and keep even if awarded. (more…)

AST acquires 70 patent assets in fixed-price, fixed-term buying program

AST, a provider of proactive patent risk mitigation solutions, recently announced the results from IP3 2017, a fixed-price, fixed-term, collaborative patent-buying program. Launched this past August, IP3 2017 gave sellers an easy way to access the secondary market by streamlining the process of selling patents with a fixed-price, rapid-response model. Through IP3 2017, patent sellers had the opportunity to offer their patents for purchase to AST’s full membership, which includes dozens of the world’s most successful companies across multiple industries.

Like the inaugural IP3, IP3 2017 attracted strong interest from both patent sellers and AST members. Participants in IP3 2017 included 15 operating companies including Google, IBM, Microsoft, Ford, Honda, and Cisco with nearly $2.5 million spent to acquire 70 active assets.

Unlike IP3 2016, which was open to AST and non-AST Members and sought patent submissions across all technologies, IP3 2017 was a narrower program and sought submissions limited to the following technologies: (1) Internet of Things, (2) Wireless, (3) Content Delivery, (4) Networking, and (5) Communications.

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U.S. Argues Patents are a Public Right in Oil States

In going through the Department of Justice brief in Oil States, you will find no fewer than seven different places where the government makes the argument that patents are a public right, and not private property as they are ordinarily considered. This is interesting because the patent statute itself refers to patents as having all the same attributes of personal property, and at various times the Supreme Court has themselves equated patents to real estate.

Notwithstanding, the Federal Government argues patents are a public right throughout its Oil States brief, as shown from the passages that follow:

DOJ Oil States brief at pg. 13

The justification for patents is not that an inventor has a natural right to preclude others from making or using his invention, but that patent protection will ultimately benefit the public by providing an incentive to innovate. Governmentally-conferred franchises designed to serve such purposes create “public rights,” whose scope and continuing effectiveness may be resolved by non-Article III tribunals.

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