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24 July 2017Patents

WIPR survey: Readers agree that US patent system in poor health

WIPR readers have agreed with the sentiment of a former chief judge of the US Court of Appeals for the Federal Circuit that the US patent system is in poor health.

Earlier in July, WIPR reported that Paul Michel, who served in the role from 2004 to 2010, had claimed that most patent owners are unable to enforce their rights and that the impact of “bad actors” within US patent litigation has had a “devastating impact on nearly all but giant multinational corporations”.

A whopping 90% of WIPR readers who answered a recent survey question agreed with Michel.

“The US Supreme Court has muddied the waters in so many areas of patent law, including its recent decision in the Apple v Samsung case involving damages, a well settled area of the law until now. Such a shame for patent owners. It is only benefiting infringers,” said one respondent.

Another agreed that there were too many procedural advantages handed to infringers, such as “never-ending” inter partes reviews and re-examinations, with “no real chance” for an injunction.

The law on section 101, which covers patent subject matter eligibility, is “chaotic and not clearly defined”, claimed one reader.

Section 101 has been at the heart of a number of recent US Supreme Court decisions, including Alice v CLS Bank, which set out a two-part test for patent eligibility.

“Courts and the Patent Trial and Appeal Board seem to be striking down solid patents based on poorly articulated and amorphous legal standards and hindsight review of the obviousness of a technology,” added the reader.

One reader, who has been in the IP market for two decades, stated that the America Invents Act and the Supreme Court have “undercut US patent integrity with a consequent dilution in value”.

They explained: “Unless corrected immediately, innovation will be owned by others in the 21st century and the US will slide to a second tier economy.”

Another reader believed that the system was in poor health because of the low level of granted patents and “weird (unequal quality) decisions from US Patent and Trademark Office examiners, leading to ‘the more I pay the more I get’”.

They added that the future of “worldwide” patent litigation lies in Europe’s planned Unified Patent Court (UPC) and its ability to be fair (for defendants) and useful for patent owners.

However, the UPC has been hit by a series of delays.

Last week, WIPR reported that the  final legislative step in the UK’s ratification process for the UPC Agreement was not debated in the House of Commons as had been scheduled.

Before this, the German Constitutional Court (Bundesverfassungsgericht) delayed the ratification of the agreement in Germany because of a constitutional complaint.

For this week's survey, we ask:  Reports suggest that the UPC's central division seat in London might be moved. Would Milan, which is being touted as a potential replacement, be a good alternative?

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Patents
14 July 2017   The health of the US patent system is poor, with most patent owners unable to enforce their rights, according to a former chief judge of the US Court of Appeals for the Federal Circuit.