INSIDECOUNSEL.COM ● January 2016
Works in progress
Top courts, P TAB continue to shape
IP litigation sector
THE NATION’S TOP courts as well as the patent office continue to
provide needed direction on intellectual property litigation.
Though no new blockbuster decisions are likely soon—and
patent reform appears to be stalled in Congress—there are some
pending cases and upcoming concerns that will likely shape the
patent litigation sector into next year.
When it comes to the most-anticipated patent cases, the U.s
supreme Court will hear two combined cases that both deal
with enhanced damages. These are Halo Electronics v. Pulse
Electronics and Stryker Corp. v. Zimmer.
And Mark A. Lemley, who directs stanford University’s program
in Law, science, and Technology identifies the “big issues” at the
Federal Circuit as the wave of appeals from the patent office’s
patent Trial and Appeal Board (p TAB) and the coming wave of
patentable subject matter decisions that follow the supreme
Court’s 2014 decision in Alice Corp. v. CLS Bank International.
“so far the court has mostly affirmed the p TAB decisions, often
Patent ‘trolls’ rushed in to
without opinion. And they have held for the accused infringer
in every patentable subject matter case but one since Alice,”
Lemley said. “There are some cases coming that will test
their resolve on that issue, however.”
The rULes ChAnged
sue before deadline
A RECORD NUMBER of patent lawsuits
were filed in U.s. district courts
nov. 30 as nonpracticing
entities rushed to avoid a
change in the law that took
effect requiring plaintiffs to
spell out in detail in their
complaints how their patent is
Approximately 259 patent
cases were filed that day,
according to the legal analytics
company Lex Machina, 15-18 times
the average number filed in one day.
Last year, only 14 patent cases were filed
on the Monday after the Thanksgiving holiday weekend.
The burst of filings came in advance of a change in federal
pleadings standards that took effect dec. 1. A rewrite of the
Federal rules of Civil procedure eliminated “Form 18,” a patent-specific form that enabled plaintiffs to file patent suits with bare-bones claims. For nonpracticing entities commonly referred to
as patent trolls, the change was unwelcome, as they had relied
on Form 18 to file cookie-cutter suits against multiple defendants
with complaints that contained few details about the alleged
infringement. plaintiffs needed only to specify that the plaintiff
owned the patent, that the defendant’s product infringed the
patent and that the plaintiff suffered damages.
“Alice and its progeny introduce uncertainty about the
enforceability of software and business method patents,
calling into question the value of those patent assets. In the
short term, this likely means that the existence of software
and patent assets will likely have a smaller impact on the
overall value of a deal.”
Congress mulls tax changes to keep companies—and ip—in the U.s.
Erich Spangenberg, who along with Kyle Bass has filed
lawsuits challenging Big Pharma’s allegedly high drug prices
“These are—to borrow a phrase from my good friends at
Jones Day and Celgene—truly altruistic filings.”