CQ Roll Call Opinion: That Patent Landscape Has Changed, but Targeted Reforms Still Needed, by David Kappos
This post originally appeared in CQ Roll Call on January 5, 2015.
The 114th Congress will soon begin and the newest members of Congress will take their seats. While the 113th Congress was hampered by partisan gridlock, there’s optimism among many that the 114th could be defined by tangible compromise on critical issues facing our nation.
Many expect that patent reform will be one of the top bipartisan issues for the new Congress. In 2013, Congress responded to growing concerns over litigation abuses and moved to address a number of litigation procedures. They weren’t the only ones paying attention to this issue. While reform stalled in Congress, the courts and other government agencies took some meaningful steps. We now have decisions from the Supreme Court on important issues, such as fee-shifting, and actions on bad faith demand letters by the Federal Trade Commission (FTC). In addition, the Patent Trial and Appeal Board (PTAB) has been actively reviewing the validity of newly issued patents that are challenged through post-grant proceedings implemented under the America Invents Act (AIA), and the Judicial Conference is requiring more specificity in patent complaints.
These changes have led to a marked decline in patent litigation in some sectors, especially from NPEs.
So the question at hand for Congress is this — do the patent policy issues that motivated the legislative effort in 2013 still hold in 2015?