IPO Annual Summit Outlines Several Threats to Patents

The IPO Annual Summit in Vancouver discussed several key issues in IP, especially important to patent holders.

At the IPO Annual Summit in Vancouver last week, the focus in the patent sessions was on the changing landscape of patent validity, starting with the Supreme Court.

While patent litigation reform in the U.S. was killed earlier this year in the Senate, the Supreme Court has decided six patent-related cases so far this year, the most in at least 100 years.  The cases almost always overturned the Federal Circuit, with the message to the Federal Circuit to (in the words of one speaker) “knock it off, you’re making it too complex.”

Several key Supreme Court decisions had were outlined:

  • In Alice v. CLS Bank, the Supreme Court made a unanimous decision (in stark contrast to the Federal Circuit’s 7 opinions across 10 judges) that simply adding “do it on a computer” to an unpatentable concept does not make that concept patentable.
  • In Octane Fitness v. ICON Health, the Supreme Court said that an “exceptional” case for fee shifting simply needed to be exceptional, per the language of the statute, and didn’t need to meet the Federal Circuit’s high bar of both objectively baseless and subjectively in bad faith. In practice, this is expected to make it easier for winning party in a patent infringement case to pursue legal fees from the losing party.
  • In Nautilus v. Biosig regarding claim indefiniteness, the Supreme Court felt the Federal Circuit’s standard of “insolubly ambiguous” is too high a standard and allows too much ambiguity in patent claims, and in another unanimous decision, the court reduced the indefiniteness standard to “reasonable certainty” for those “skilled in the art about the scope of the invention”.

According to the presenters, the net impact is that the Supreme Court is making it easier to overturn patents, and more difficult for patent owners to succeed in court against alleged patent infringers.

Other discussion topic included decisions by the Patent Trial and Appeals Board, which in its short life has had a consistent track record of striking down claims it has reviewed. One speaker, commenting that anti-patent voices are loud and being heard in the market and political arena, said that patent owners should “remind the public of the role of patents in safeguarding U.S. innovation.”

Along those lines, the IPO had a video contest for several under-18 age groups about the value of patents, and made awards to several excellent videos that focused on how patents help inventors protect and capture the value of their innovations.

On the last day, Intellectual Ventures’ CEO Nathan Myhrvold also spoke about the value of patents at an economy-wide level, making the case that strong patents make for a strong and growing economy.  The highlight for me was during the Q&A when Nathan said “to be an inventor, you have to believe something that doesn't exist yet."

That’s what we’re focused on here at Innography – pushing to invent the future of IP analytics with game-changing innovations in each and every year.

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