With everyone feeling suitably optimistic about the future of copyright and trade mark law, are patent lawyers feeling equally jolly? Well....not quite. There seems to be more problems to resolve following reform in the US and Europe, as the AmeriKat reports:
|Always smiling, John has been|
working hard on patent harmonization
|Judge O'Malley - a fan of the skill of IP litigators|
Judge O'Malley also commented that the Supreme Court is increasingly taking an active interest in the CAFC given its important role which has been borne out by the numbers. For example, in the past 6 years the CAFC has had 47 cases go to the Supreme Court, 32 of which are patent cases. The Supreme Court is weighing in on really complex issues in relation to section 101 - patentable subject matter. However, in response from a question from Hugh, Judge O'Malley noted that she is not a "huge fan of the Supreme Court's patent jurisprudence", especially when she sees a unanimous decision as that is indicative of a court that is not really delving into the patent issues, as necessary. Judge O'Malley stated that she likes the ways in which the Supreme Court has dealt with some issues, for example in relation to civil procedure and jurisdiction. But, she stated, when it came to patent law "they have created more problems than what they have resolved".
|David Kappos - not a fan of the Supreme Court's|
decisions on section 101
In terms of Supreme Court decisions, especially the CLS v Alice Bank decision, David said that it is impossible to make sense of the Supreme Court jurisprudence on section 101. In trying to make sense of section 101, the PTO is trapped by a set of Supreme Court decisions which are incomprehensible. That is has been the architect of PTO's real struggle to get to grips with patentable subject matter. Judge O'Malley agreed that it is difficult to understand what is and is not left in terms of patentable subject matter, but this challenge has led to many more creative arguments from lawyers who try to distinguish their inventions from the realm of a CLS v Alice Bank situation. Sir Robin chimed in stating that in the real world the patent office does issue bad patents - it is inevitable This is because its a one-sided examination process conducted by an examiner who may not have all of the prior art before him or her and who is generally under-resourced. You can see this in Europe where an opposition takes 10-15 years to decide whether a patent is valid. This is a broken system. The America Invents Act, to Sir Robin, looks great in comparison as it provides a quicker, more efficient regime to address validity. It also provides certainty, which is hugely important.
David agreed about the inevitably of some patents being wrongly granted. In particular, this is an issue when an examiner is being asked whether an invention is abstract - that very question is entirely subjective and, as Sir Robin noted, in such a situation of course wrongly granted patents will be inevitable.
|Sir Robin envisaging the end of EPO oppositions in favor|
of Central Division revocations
Picking up on this point, the AmeriKat posed a question to the panel: Given the problems of this dual-track system - in the US, between the district courts and the USPTO IPR and, in Europe, national courts and EPO oppositions - what is the solution? In Europe, a national court may have held a patent to be valid and infringed only for the patent, many years later to be held invalid by virtue of an EPO opposition decision. This issue will come up in the UPC and we should be looking for a solution now. What is the answer? Judge O'Malley stated that what is needed is knowing when there is a final decision. This needs to be clear, but that under US law this may be an issue which needs to go to the Supreme Court to resolve. David Kappos stated that clever litigants will find ways to game a dual-track system. When the AIA was put together, David stated that a "safety valve was put in place whereby the USPTO could decline to institute an IPR. However this safety valve needs to be used more", especially when a litigant has had their day in court. Another solution, would be by way of legislative fixes to address the unintended consequences of the dual-track system. Sir Robin stated that the solution, with respect of the UPC, would be to forget EPO oppositions and to commence revocation actions before the Central Division of the UPC. Indeed, he foresees litigants using this venue more than EPO oppositions in the future.