AIPLA 2016: US patent rulings threaten quality of life, claims lawyer
US patent decisions in the software and biotechnology fields will “eventually breach the US economy and our quality of life”, according to one private practitioner.
James Hallenbeck, principal at Schwegman Lundberg & Woessner, who was speaking in a personal capacity yesterday, October 27, at the American Intellectual Property Law Association’s (AIPLA) 2016 Annual Meeting in Washington, DC.
“To minimise these impacts, Congressional action is needed to bring the courts back within the intent of Congress dating back to the enactment of the Patent Act of 1952,” Hallenbeck said.
He explained that the patent system is built on the principles of promoting progress in the sciences and useful arts by rewarding inventors with exclusive rights in their respective discoveries.
“Inventors plant the foundations to secure their exclusive rights through disclosure in patent applications. Absent this disclosure, in exchange for patent rights innovators would commonly keep their discoveries from competitors and the general public.”
Hallenbeck added that the grant of a patent to an innovator “deprives the public of nothing which it enjoyed before the discovery but gives something of value to the community by adding to the sum of human knowledge”.
The US possesses intellectual property assets worth in excess of $5 trillion, greater than the GDP of every country in the world apart from China, he claimed.
He added: “Software and biotechnology are two fields that power the US economy. The technology is not only the technology that the patent system intended to promote—the industries have been proven to save lives and are vital components of the economy.”
But despite these advancements being exactly the type of technologies that the patent system intends to promote, “obtaining, defending and asserting patents” in these areas has become more difficult.
“Subsequently, patent practitioners are combating new, evolving and aggressive claim rejections … and drafting new claims has become a bit of an exercise in guess work,” he said.
Following the implementation of the America Invents Act, the Patent Trial and Appeal Board quickly become known as a patent ‘death squad’.
According to Hallenbeck, patents have fared even worse since the Alice v CLS Bank decision, with district courts reaching invalidity findings under section 101 more than 66% of the time, while the figure is 91% at the Federal Circuit.
He added: “Innovators face great uncertainty as to the validity of their existing software and biotechnology patent portfolios, which likely impacts the valuation of their products and companies as a whole.”
The AIPLA 2016 Annual Meeting finishes on October 29.
