Patent Infringers Need Sunscreen

These are sunny days for patent infringers. In fact, the weather has never been better. Over the past few years, the U.S. patent system has been walloped by a virtual legal hurricane, but now in the aftermath of the storm, times are sunny and warm for some.

Since the infamous BlackBerry case, the courts and the Patent Office have been busy making change after change to the patent system. Each change on its own arguably makes some sense, but cumulatively, they have all been in the same direction—against patent owners—and the patent landscape has been transformed into something wholly new, a mini-me version of what it once was.

Whether you think of it as a rogues gallery or an honor roll, the list of transformative court cases is undeniably long: KSR-lowered threshold for obviousness challenges, MedImmune-enabling licensees to challenge the patents they license, Ebay-higher threshold for permanent injunctions, Seagate-easier to avoid willful infringement, Bilski-limiting patentability of business methods, Comiskey-mental steps not patentable, Nuitjen­-data signals not patentable. Sunny weather indeed for nearly everyone, except perhaps for inventors and patent owners, who we have now been trained to refer to as “patent trolls” (to be consistent, I also now think of big corporations as “patent billy goats gruff”).

And the forecast for future promises more warm sunshine for patent infringers. Congress continues to look for a role to play in these transformations, and at the moment looks poised to pass “reform” legislation to “fix” the many “problems” in the present patent system.

Say, are you using those sunglasses?