Journal Article

Judicial reform of patent litigation in the USA

James R. Farrand, Victoria C. Shapiro, Paul A. Abbott, Christopher M. Stothers, Seth D. Weisberg and Richard A. Killworth

in Journal of Intellectual Property Law & Practice

Volume 6, issue 6, pages 381-395
Published in print June 2011 | ISSN: 1747-1532
Published online April 2011 | e-ISSN: 1747-1540 | DOI: http://dx.doi.org/10.1093/jiplp/jpr033
Judicial reform of patent litigation in the USA

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Legal context

The past quarter of a century was a time of strong and increasing patent protection in the US. But recently, in the face of pressure from the business community, scholarly studies, US Supreme Court opinions, and threats of Congressional action, US courts have narrowed patent protection in a wide variety of ways. This article explores the specifics of that reversal.

Key points

Recent court decisions have overturned a variety of pro-patentee rules in litigation, facilitating patent invalidation, reducing patent coverage and the availability of important remedies for infringement, and cutting the power of juries in patent cases. The result is a rapid and wide-ranging retrenchment--essentially “patent reform” without Congressional participation. Particularly affected are non-practising entities, which are more vulnerable to validity challenges and, in most cases, have lost the strongest weapon in their armoury for licensing negotiations--the chance to obtain an injunction against infringers. Holders of business method patents and small-entity patent holders also suffer disproportionately from the changes.

Practical significance

The article summarizes the facets of US patent protection affected by the recent decisions and discusses the consequences of the changes for current (and potential) US patent holders and producers/traders active in, or selling to, the US.

Journal Article.  11480 words. 

Subjects: Arbitration ; Intellectual Property Law

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