A look at what the Trump administration, USPTO updates, and more mean for the future of design patents.
From Steve: Please welcome returning guest blogger Andrew Rapacke. Andrew is the managing partner at The Rapacke Law Group, a full-service intellectual property law firm.
Andrew delves into long-term strategy, plus a subject of much recent discussion: politics. Politics has been the news a lot lately and we inventors need to realize that Intellectual Property laws do change. Knowing how politics can affect possible changes is vital.
His thoughts also reinforce the need to consider the various types of Intellectual Property necessary to protect ideas. Many companies I’ve met with believing that “getting a patent” will suffice. Of course, their counsel could expand upon this idea but that’s not guaranteed.
With the new year upon us, now may be a good time to assess this past year. In describing 2016, “unpredictable” is the first word that comes to mind, from our presidential election to some of the evolutions in patent law. It just so happens that the recent election will create some more “unpredictable” changes in 2017.
But first, let me assess this past year, which was a busy time for patent remedies. The U.S. Supreme Court decided two cases, one on willfulness and the other on design patent damages. In Apple v. Samsung, the court’s ruling suggests that patent holders may no longer receive all of the profits from the sale of a product infringing a design patent, but they may still recover the profits attributable to the infringing feature. The court’s ruling will bring significant challenges in the calculation of damages for design patents and the need for additional factual and expert input.
The other big news story of 2016 was with respect to patent eligibility. In May 2016, the Federal Circuit issued several decisions to provide meaningful insight into how software can be described so that it will be considered patent-eligible. The increasing number indicates that judges would find at least some software patent claims to be eligible.
As for forecasting ahead, Trump’s platform sends a strong message of support for intellectual property as an essential component to American innovation and economic stimulation. Moreover, his policy indicates tougher penalties against infringement and stricter enforcement of domestic and international intellectual property rights. This is encouraging, as are the potential ramifications of some of Trump’s policies.
While patent reform may not be a top priority for the Trump administration, regulatory reforms to the PTAB could be seen and, depending upon who ultimately becomes director of the U.S. Patent and Trademark Office (USPTO), those regulatory reforms could be quite significant and beneficial to patent owners.
Moreover, the USPTO recently issued its fiscal year 2017 Congressional Justification report, which provides some annual review and can be used as a tool for future forecasting. Statistics included in the federal notice show that the USPTO expects patent applications to grow from around 594,000 in the fiscal year 2017 to 676,000 in 2021. Fees at the Patent Trial and Appeal Board also are proposed to see hikes in the thousands of dollars, including a $5,000 increase for an inter partes review request fee to $14,000 for up to 20 claims.
Additionally, the number of requests for continued examination and their backlog has been reduced, which will allow the USPTO to reduce the backlog of unexamined applications and length of patent pendency.
Finally, the USPTO proposes fee increases to recover its estimated costs for patent operations and achieve its strategic goals of optimizing patent quality and timeliness and increasing international efforts to improve IP policy, protection, and enforcement. A notice of proposed rule-making outlines plans to adjust 205 fees in order to make more money for the office so it can continue funding patent operations and grow a reserve balance, among other goals.
As for patent trolls, it would seem that there was a noticeable drop in lawsuits at the start of 2016. But trolls began returning to court as the year continued, and 2016 will likely end with a relatively small overall decline.
Although patent reform will almost certainly return in some way in 2017, it was never going to enjoy the same widespread support that it had during the Obama administration. While it remains unclear what President Donald Trump will do regarding intellectual property protections, his comments and policy views in other areas suggest he will continue to favor a strong territorial view. It is safe to say the industry would have been far more predictable had Hillary Clinton secured a victory. Instead, it remains uncertain how Trump will approach those issues, and even who will be on his short list to run the U.S. Patent and Trademark Office.
Andrew Rapacke is a registered patent attorney and serves as managing partner at The Rapacke Law Group, a full-service intellectual property law firm.