US Patent Policy Collapse By Supreme Court Concerned About Patent Trolls –


The Supreme Court was so concerned with patent trolls that, decision after decision, the concern over the chaos caused by patent trolls was explicitly discussed by the Court and explicitly deplored. As if to say “not under our watch,” the Supreme Court made bad political decisions after bad political decisions, which pushed the US patent system to the brink of collapse. During all this time, the Court has never had the opportunity to decide a case involving a patent troll, whatever it is and whatever the term used.

While pontificating from above, this Supreme Court has systematically violated the most fundamental rule of American case law on appeals: to decide the case before you on the file alone. Indeed, this Supreme Court, supposedly conservative by ideological affiliation, has been aggressively militant. Making political decisions is not what a court is supposed to do at any level, especially when there is no effective oversight and the decisions effectively gut what is constitutionally meant to be co-equal branch of government in reality responsible for legislating and defining policies. .

Courts of appeal are not supposed to leave the case, they are supposed to decide the issues presented on the basis of the facts presented. Yet this Supreme Court has always looked outside the case, accepted the facts first presented in amicus briefs to be true even though they have never been the subject of close scrutiny. Indeed, the New York Times has explained that “the opinions of the Supreme Court are more and more littered with quotations of facts which they learned from the briefs of amicus”. In addition, the Supreme Court has consistently been concerned with patent trolls (see eBay vs. MercExchange, Electronic Halo and Commil USA, LLC v Cisco Systems, Inc.) although no patent holder has ever been claimed to be a patent troll in a single case before the Court. And let’s be honest, TC Heartland was all about patent trolls and trying to make it harder for patent holders to sue in the Eastern District of Texas, but the patent holder in this case was Kraft Foods, hardly a patent troll.


This means that US patent policy has been corrupted by a Supreme Court concerned about a missing bogeyman in a single dispute they have been asked to resolve. This means that this Supreme Court has allowed a carefully crafted public relations narrative to influence virtually every patent decision over the past 12 years, when many in the industry believe patent troll no. he is nothing more than an opportunistic ghost created by a relatively small number of companies. – determined to weaken patents to the point where they are simply not enforceable.

It’s humorous – in a sort of tragic comedy – given how the Roberts Court has repeatedly pontified about how appellate courts should defer to district court judges who are on the front lines. . Apparently, this is not true when it comes to concerns about patent trolls. Apparently, the Roberts court thinks they know better what constitutes the abusive behavior and bad actor type than the district court judges who actually have a front row seat for the action. In cases of abusive behavior, the Supreme Court should encourage district court judges to use their powers under 35 USC 285, 28 USC 1927, and rules 11, 26, 30 and 37 of the Federal Rules of Civil Procedure, as well as any number of previous cases which allow attorneys’ fees to be awarded to deal with litigation abuse, such as, but not limited to, abuse of discovery and knowingly engaging in misuse of litigation. false statements. Encouraging district court judges to make greater use of the tools at their disposal is the right approach, not deciding cases on the basis of information outside the case and on the basis of concerns about hypothetical bad actors not involved in the process. ‘case.

The Supreme Court has been duped by propaganda that even Obama’s FTC did not buy. Indeed, Obama’s FTC decided to issue a report finding patent trolls wicked, to support President Obama’s rhetoric and policies, but instead concluded that the use of the term patent troll is unnecessary and misleading because it misrepresents patent owners from the start. in a way that trivializes a complex problem and ends up being consistently incorrect. Thus, the US patent system and the innovation advantage were confiscated from Europe and China due to a misleading narrative and characterization to say the least.

The net result of the past 12 years is a patent system and body of law where the Federal Circuit is absolutely right, based on the law, to observe that no matter how large an innovation is, there is simply innovative advances that are not patentable in America. It is as disturbing as it is correct, and we only have the Supreme Court to thank for this most remarkable turn of events.

Between 1952 and 2011, anything that was man-made under the sun was considered patent eligible. America had a broad view of what was eligible for patenting while other less enlightened countries placed restrictions on the types of innovations that could be patented. But today we have come full circle. The United States is increasingly banning patents on advanced biotechnology, medicine, software, analytics, big data mining, artificial intelligence, and other innovations. For that, we only have the Supreme Court to thank.

Of course, as the US patent system burns the watches of Congress. While the Supreme Court is directly responsible for a series of decisions that have fundamentally changed the face of innovation policy and America’s future, Congress is complicit in its inaction.

It’s time for Congress to stand up to the Supreme Court and take back control of innovation policy and America’s future. We cannot rectify the glaring mistakes of the past, but we must learn from them and change our future.

Gene Quinn

Gene Quinn is a patent attorney and publisher and president and CEO of IPWatchdog, Inc. Gene founded in 1999. Gene is also a keynote speaker in the PLI Patent Bar Review Course and Of Counsel of the law firm of Berenato & White, LLC. Gene’s specialty is in strategic patent advice, drafting patent applications and patent prosecution. He consults with attorneys facing specific procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation, and works with start-ups in the United States and the United States. the world, mainly in software and IT innovations. . is admitted to practice law in New Hampshire, is a professional patent attorney, and is also admitted to practice in the United States Court of Appeals for the Federal Circuit. CLICK HERE to send a message to Gene.


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