In reflecting on my 30-plus years as a patent litigator, I have noticed that there are far more shades of gray than black and white in patent law, and that it seems to change more, and more dramatically, than any other area of law. In fact, patent law has changed more in the past five years than it did in the prior 25. What are the reasons for this hyperactivity? And given these recent and radical changes, what are the top things that even non-patent lawyers should know?
Major reasons for these changes are the mind-boggling technological advancements in recent years and the reaction by courts and legislators as they try to keep up and respond to how patents on that new technology are being monetized. Now more than ever, companies—technological and non-technological alike—understand the importance of technology in successfully competing in today’s marketplace. In this environment, patents are powerful and desirable tools because they provide patent owners, among other things, a limited legal monopoly or, more accurately, the right to sue others for infringement. This is the subject of much tension, as patent law is part of the debate about what is best for the American economy and thus best for America and Americans.
On one side of the coin, giving inventors exclusivity on their inventions and thus the ability to monetize them spurs innovation and, equally important, investment in innovation, which in turn promotes business growth. On the other side of the coin is the concept of free and fair competition, which provides a level playing field on which marketplace actors compete. Patents are, by definition, an exception to that. Therefore, patent law, which defines and limits what is patentable and what is protected, is constantly changing to try to find the right balance. The result is that the pendulum perpetually swings, one way or the other, from pro- to anti-patent, sometimes quite suddenly.