AIPLA 2016: SCOTUS decisions have destabilised patent law, says Qualcomm counsel

There has been a constant chipping away at the “foundation of the research-driven innovation ecosystem” following a number of US Supreme Court decisions over the last ten years.

This is according to Laurie Self, vice president and counsel, government affairs at Qualcomm, speaking at the American Intellectual Property Law Association’s (AIPLA)  2016 Annual Meeting in Washington, DC on Friday, October 28.

Self and all the other panellists in the session were speaking in a personal capacity.

She added that almost all of these decisions have “destabilised the law around patent rights in one respect or another”.

The often sweeping bills not only address so-called abusive conduct but really affect every patent in the country, “often in very dramatic ways”, said Self.

She explained that this was being driven in part by a “fundamental shift” in the way people look at their intellectual property rights—a constant negative narrative around the patent system that can be seen in the media.

Philip Petti, chief IP counsel at USG Corporation, which manufactures construction materials, added: “At times it feels like we’re sitting in the middle of the bus, and crazy people have the wheel.

“We have not yet had a lot of activity in the PTAB [Patent Trial and Appeal Board] but at the very least, not to be critical, the perception of what the PTAB is doing as part of the patent system is a real problem too,” he said.

Petti believes there should be a focus on reform, but whether that’s done with “a sledgehammer or a scalpel” will be big question.

Micky Minhas, chief patent counsel at Microsoft, added: “It’s from both a legal and regulatory side where you see this chipping away at the ability of US companies to compete on a worldwide scale effectively.

Adrian Looney, assistant general counsel at Pfizer, said “we are doing injustice to ourselves which will have long-term consequences”, adding that it is currently a “very unstable environment”.

Minhas described patent eligibility as a “moving target”, making it difficult to proceed with some level of certainty.

He added that the US Patent and Trademark Office is an easy target for criticism but is actually doing the best it can.

Looney explained that for the pharmaceutical industry, inter partes reviews are not an alternative to litigation but rather an add-on which have created more uncertainty.

“It hasn’t made our system more efficient,” he said.

The AIPLA 2016 Annual Meeting finished on October 28.