Today, we bring you a guest blog post from Leonard Priet, a writer for Patexia.com. The post briefly discusses about the scenario after the thrust in technology oriented patent applications and various tactics employed to practice defense in patent wars.
Invalidation: law at the heart of patent litigation
With the dot-com bubble around the turn of the century, there was a dramatic increase in the number of patents issued by the USPTO. The world, and the United States in particular, was rife with ideas that companies and individuals wanted to protect. This aggravated a problem that had been mounting for the previous decade. Beginning in the past twenty years the patent office, couldn’t keep up with the dramatic increase in the number of applications per year, which resulted in the issue of a number of patents that did not necessarily pass the strict standards of patentability from which the world of American innovation had flourished since its creation in eighteenth century. By erring on the side of a laissez-faire approach due to sheer lack of resources, the patent office has left the burden of determining which patents are valid to the courts.
Today’s excessively litigious technology market - where swaths of thousands of patents are bought and sold , aiding in increasingly harmful patent wars - is the crucible in which irrelevant patents must be boiled away, leaving only those that live up to the USPTO’s strict standards of patentability set forth in Chapter 10, Title 35 of the United States Code.
Everybody’s suing everybody else
The question that the courts must answer in patent infringement is: which lawsuits are legitimate or, alternatively, which patents are valid? When a defendant is being sued for patent infringement, the most common recourse is to invalidate the patents involved. This all boils down to patentability which, in the eyes of patent law, means non- obviousness (sect. 103) and novelty (sect. 102).
Non-Obvious subject matter : (35 U.S.C. 103)
An idea is not patentable if it is obvious to a person skilled in the field related to a particular patent. To invalidate a patent under this section, a defendant in a patent infringement case must show that the idea disclosed in a patent would be obvious to an individual skilled in the field of the patent. For example, if a defendant is sued for a patent that claims replaceable ink cartridges, the defendant needs only to show that replaceable ink cartridges are an obvious addition to pens. At least obvious to someone who works in the business of pen making. Patent invalidation by obviousness is rare because examiners can easily recognize obvious ideas before they are patented, so obvious patents seldom end up in lawsuits.
Novelty : (35 U.S.C. 102)
To hold patent for an idea, that idea must be unique. This requirement is where the majority of patents fall short, and therefore is what many patent infringement defendants use to invalidate patents and win cases. To determine whether or not an idea is novel, an examiner must effectively look through an endless number of sources, a tall order when time and resources are limited. As a result, a significant proportion of patents are issued because a patent examiner could not find any source to demonstrate that the idea is not novel. But this does not mean these sources referred to as “prior art” do not exist. The most common way for a defendant to win a patent infringement case is by finding some documented proof that the patent’s idea is not novel by locating this prior art. As a result, such prior art searches have become an integral part of patent litigation defense, and are likely to become increasingly important and ubiquitous in upcoming years. Hence, we are able to conceptualize the latest trends in the patent wars and the modes employed therein to practice defense.
Leonard Priet is a writer for patexia.com -- a social network for researcher, business, and innovation. Patexia’s mission is to advance the pace of innovation by offering community resources and patent research tools as well as expert-targeted prior art searches for patent invalidity.
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