|Problems, problems everywhere,but|
where is the solution for the dual-track system?
The panel also noted that the presumption of validity under US patent law assists the patentee in showing that they have something of real value and that the burden of proving that the patent is invalid falls on the other side. However, in reality if we took a poll, many would comment that there are a lot of weak patents out there. It was suggested that perhaps the focus therefore should be on patent quality so that the presumption of validity and the standard of evidence to rebut that presumption (clear and convincing) is actually appropriate. Just because a patent has survived one patent challenge does not mean that the patent is necessarily stronger. If the patent has survived a challenge in front of a really good judge, then the panel noted that that may deter opponents. However, in reality, that decision is not binding on anyone who is not party to that case. Those parties will try a different tactic before different judges in a different forum. This is of course correct - it is not fair to an absent party to be faced with the bias of a decision in a case they had no right to participate in. There cannot be a time bar for bringing a challenge to a patent in district court as potential litigants and controversy may not be in existence at the time of the first action.
If the panellists could change one thing about this dual track landscape, what would it be? There was no consensus, however, two panellists suggested that they would rather all arguments be articulated at the PTAB and the district court case stayed until the PTAB conducts its assessment, rather than to "drag on and on in a slow expensive process in district court."
Closing the session, moderator Rachel Krevans (Morrison & Foerster) explained that the US has one system of patent laws, regardless of technology and regardless of the identity of the patentee. However, recent history with the rise of non-practising entities has generated a lot of cynicism about the value of patents, i.e. not being worth the paper they are printed on. However, when companies start the R&D and investment cycle for products, they need to have confidence in strong patent protection and in the patent system to assure investors that their investment will become good.
If the quality of patents being issued is in doubt and the number of times a patent will be subject to attack is almost limitless, then confidence in the strength of patent protection and the system begins to falter. The value of the bargain struck in obtaining patent protection begins to erode. The AmeriKat wonders whether if such a state of affairs is permitted to continue, more inventions will be protected by way of trade secrets, not by patents. Surely, such an outcome will be classed as devastating failure of laws that were established to promote innovation for the good of society. But who has a solution? AIPPI has been working on a full scale global survey on this dual-track problem over the past few months to identify potential solutions. This work will continue over the next few months and the AmeriKat will keep readers updated on this work as practitioners grapple with this problem, not just in the US, but across the world.