Technology Sectors at Risk from the Perfect Patent Storm

David Newman

©2016. Published in Landslide, Vol. 8, No. 5, May/June 2016, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Innovation in the United States could be at risk due to a perfect storm of patent rulings, as well as recently enacted and pending legislation—each having a detrimental effect on patent enforcement efforts. The following three measures that disfavor patent owners could combine with the destructive power of the Greek storm giant Typhoeus: (1) the 2013 America Invents Act (AIA) broadest reasonable interpretation (BRI) rule, which has led to more frequent post-grant invalidation of patents; (2) the Supreme Court’s Alice v. CLS Bank decision, which has led to the invalidation of a multitude of software and business method patents in the information and communications technology (ICT) sector; and (3) pending fee-shifting legislation, which may chill enforcement efforts (collectively, “pro-infringer measures”).

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