Opinions and Editorials

Oct. 4, 2021

Forbes: Today, The Best Patents Have Little To Do With Protection by Stephen Key

To borrow from the Bob Dylan song, “The times they are a-changing.” That pretty much sums up the frustration experienced today by independent inventors trying to maintain ownership of their intellectual property.

Has stopping someone from “stealing” an invention ever been as simple as filing a patent application and being issued a patent? There was a time when many of us felt that way. And if you had a big idea and filed a wall of intellectual property to protect it? Well, that was an even better strategy.

But I learned firsthand in 2003 after suing LEGO, now the most popular toy company in the world, that patents are simply words that are going to be interpreted differently by different people at different times — including judges, juries, patent examiners, and even your competitors. Watching my attorneys spar over the interpretation of a couple words in federal court was a priceless experience, because that’s when I realized just how slippery of a slope I was standing on.

That slope has gotten more slippery since the 2011 Leahy-Smith America Invents Act was passed and signed into law by President Obama a decade ago. The biggest change to the U.S. patent system has been the establishment of three opportunities for challengers to get patent claims invalidated at the Patent Trial and Appeal Board (PTAB).