Academic journal article Boston College Law Review


Academic journal article Boston College Law Review


Article excerpt

It is a particular pleasure to introduce readers to this special patentthemed issue of the Boston College Law Review. In response to the number of excellent and publishable articles on patent law they received this last cycle, the Law Review editors decided to dedicate an entire issue to this timely and important subject. It is not surprising that a great deal of important work is being done in patent law research: patent law, patent enforcement strategies, and attendant industries all continue to rapidly and significantly change. Despite this change, conflicts continue to beset the confluence of innovation and patent law. This is therefore a particularly tumultuous time for patent law and policy.

The Americans Invents Act ("AIA"), which took full effect in 2013, was the most significant revision to patent statutory law in the past sixty years.1 Among its innovations, the AIA ushered in a (mostly) first-to-file system of granting patents.2 Further, it changed the categories of prior art that can be used to invalidate patent applications;3 changed certain rules for patent eligibility, such as eliminating the penalty of patent invalidity for those who fail to disclose the best mode of practicing their patented inventions;4 and changed the methods for reviewing patent validity after a patent has been granted.5 It also shifted more administrative responsibility to the Patent and Trademark Office.6

In addition, the courts have been actively deciding patent law cases. Both the Federal Circuit, the sole court of appeals for patent cases, and the Supreme Court have been deciding significant patent law issues with considerable frequency. There were many years in past decades in which the Supreme Court did not take any patent law cases at all.7 Last term, it decided seven.8 Despite this active judicial attention (or, perhaps, because of it), patent law is plagued with a great deal of uncertainty.9

The modern economy's ever-increasing valuation of intellectual property is the primary catalyst for this increasing attention to patent law.10 In addition, the latest, highly publicized patent "war" amongst smartphone manufacturers has publicly highlighted how important patents are to the fierce competition governing this highly innovative area.11

Another reason for patent law's increased relevance are the changes in what Oskar Liivak calls the "patent ecosystem."12 In the last couple of decades, patent holders have sought profits from their patent portfolios in significantly unprecedented ways. In contrast, before this trend, conventional wisdom taught that innovative market participants filed numerous patents to both protect their core innovations and to build defensive patent portfolios for use against competitors.13 Thus, two big companies with overlapping patents would only in rare cases assert their patents, for fear of retaliation.14 As a result, patent quality, coverage, definiteness, along with the injunctions or damages that accompany patent verdicts, were less important doctrines.15

Then came the patent "trolls." Much like a fairytale troll who lives under a bridge and jumps out to demand payment for passage, a patent "troll" is an entity that buys up patents rather than innovate itself and then sues successful companies that arguably (and often unknowingly) infringe one or more of the patents in the "troll's" portfolio.16 The fairness of the patent "troll" label, and the question of who exactly qualifies as a patent troll, are the subjects of considerable debate.17 Commentators likewise debate how much harm or benefit "trolls" actually cause.18 There is no arguing, however, that the past fifteen to twenty years have seen a considerable increase both in the quantity and litigiousness of firms that assert patents without themselves manufacturing inventions.19 And because non-practicing trolls cannot be deterred by the threat of countersuit, questions of patent scope, definiteness, obviousness, subject matter, and damages have become much more important. …

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