By Scott A. McKeown
| March 18, 2014
IPR...Not Just For Trolls
With Congress on the verge of passing still more legislation directed at alleviating the dreaded "patent troll" problem, perhaps Congress should pause to consider what has already been accomplished over the last 18+ months. As pointed at by Gene Quinn at IPwatchdog last week, Congress is in a rush to pass further patent reform legislation in the name of "helping Main Street America." Yet, since September 16, 2012 the America Invents Act (AIA) has been wildly successful in providing a cheaper, faster, low cost alternative to patent litigation. Inter Partes Review (IPR) in particular has become the favorite anti-troll measure.
Typically, an IPR is pursued against the subject patent so that a stay of the costlier litigation can be obtained. Depending upon the jurisdiction/judge involved, the ability to stay a litigation pending USPTO review has increased significantly since the passage of the AIA. While this change in landscape is welcome news for those battling trolls, IPR is equally concerning for those patentees considered to be true technology innovators. Patents that are being litigated today were drafted 5-10 years ago, on average. In other words, currently asserted patents were drafted to leverage the validity presumption and clear and convincing evidentiary standards of the district court. Expedited PTAB review of these issued patents wasn't possible at the time of drafting. (While patent reexamination existed it was not considered a serious concern due to its notorious, 5-6 year pendencies).
Now, the PTAB offers unprecedented speed with none of the patentee safeguards of the district court.
While much focus is placed upon the PTAB relative to NPE impact, let's take a look at what is going on in the medical device/technology sector (current as of March 2013). (Click to Enlarge)
As can be seen in the attached chart, practically every major medical device/technology company is currently involved in an IPR.
Patents in the ever emerging fields of medical diagnostics/devices are highly valued tools to ensure continued research and diversification of the market sector. Without the promise of market exclusivity, many such companies would fail to attract critical funding. Likewise, larger, well entrenched competitors would effectively prevent any significant, new competition.
Until patent application drafting philosophies account for the PTAB threat, both NPEs and innovators alike will find themselves vulnerable to PTAB attack.
Perhaps Congress should take a look around before pushing further on patent reform.