Patent News

Oct. 10, 2014

Intellectual Asset Management: Lemley: the case for Congressional patent reform is far weaker than it was a year ago, by Richard Lloyd

This article originally appeared in Intellectual Asset Management on October 10, 2014.

Yesterday, the IAM blog carried the first part of an interview with Professor Mark Lemley in which he talked about the reasons behind a sharp fall in patent litigaiotn activity in the US, the changing dynamics in the patent marketplace and the relationship between the Federal Circuit and the Supreme Court.

In part two, among other things Lemley turns his attention to the need – or not – for Congress to address patent reform, the smartphone wars and the diverging patent interests of the life sciences and high-tech sectors.

Given all that we’ve seen from the courts, what’s left for Congress to do with regards to patent reform?

That’s an interesting question. When we went through the first round of patent reform from 2005 through 2011, that started out in Congress as litigation abuse reform. And as it went through the legislative process, courts ended up solving many of the problems that the original bill was directed at. Ebay dealt with the injunction question, Seagate dealt with the willfulness question, we made it easier to file declaratory judgments, and one by one these things dropped off so we ended up with a statute that didn’t have much litigation abuse reform in it. We may be seeing the same thing here, where a lot of the things that people were focused on as problems that required solutions from Congress, like fee-shifting, are in the process of being fixed by the courts.

So would you advocate taking more time to see what happens?

I think the need for legislative reform is a lot less right now than it was a year ago and it probably makes sense to wait a bit and see how these cases play out and what the new dynamic looks like before we try to rewrite the rules.