Law360 Opinion: Time For Congress To Leave The Patent System Alone, by David Kappos
This post originally appeared in Law360 on March 28, 2016.
The U.S. patent system has undergone a number of dramatic changes in recent years, including passage and implementation of the 2011 America Invents Act, six U.S. Supreme Court cases impacting patent laws, new administrative rules by the U.S. Judicial Conference, and actions by the Federal Trade Commission and state attorneys general. Many of these changes were needed to address abuses in the system, where frivolous patent suits have been used by “bad actors” to essentially extort payments from businesses after unfairly accusing them of infringement. However, the powerful effects from these changes undertaken by multiple branches of government strongly suggest Congress can prudently step back from further reshaping the patent system. It is time to let the system embrace its major recent changes and work out implementation issues before further reform is seriously considered.
Perhaps the most significant recent development curtailing the need for further changes in U.S. patent law was the Judicial Conference’s abolition of outmoded patent infringement pleading standards on Dec. 1, 2015. Previous pleading standards for patent cases were significantly lower than those used in other cases, which made it too easy to bring a patent infringement claim with essentially no proof of infringement. While the impending change led to a spike in suits filed before the change took effect (with 259 patent infringement filings on Nov. 30, 2015) and a resulting upswing in overall new patent cases for the last quarter of 2015, the move is expected to improve infringement case quality and reduce volume going forward because of the newly heightened pleading standards.