Re-Balancing: This Year Supreme Court Might Side with Patentees on Enhanced Damages
Dennis Crouch
Patents; AI; and Ethics - Law Professor at the University of Missouri School of Law
Many patent attorneys are upset at the Supreme Court for weakening the power of a patent. Recent Supreme Court cases in this direction include Alice Corp (weakening software and business method patents); Mayo (weakening diagnostic method and patient-centered medicine patents), Nautilus (making it easier to invalidate patents as indefinite), KSR (making it easier to invalidate patents as obvious), Octane Fitness (making it easier for a successful defendant to receive compensation for attorney fees expended) and eBay (making it harder for a patentee to stop ongoing infringement). The America-Invents-Act (AIA) has also largely been tough on patent-holders with the rise of Inter-Partes Review (IPR) Proceedings and the expansion of prior-art under the first-to-file rule. There have been a couple notable cases on the other side. Most critically is the Microsoft v. i4i decision where the Supreme Court held that a patent clear and convincing evidence is required to invalidate an issued patent.
This term the Supreme Court is set to hear one patent issue and I expect that the result will be on the re-balancing side, that is, favoring patent holders.
The two joined cases are Halo and Striker and the focus is on enhanced or punitive damages to be assessed after a finding of infringement. The Federal Circuit has created a fairly complex and restrictive test that severely limits when a district court can award damages for willful infringement. I expect that the Supreme Court will reject the Federal Circuit’s approach and instead give flexibility to District Court judges to award punitive damages in patent cases when justified by the circumstances. That new approach follows the statutory guidelines set out in the federal code and in my view is the right answer.
Chairman
8 年Finally, the pendulum may swing back in patent law, to the innovators whom the founders protected in the US Constitution. The inventors and investors in innovation. Competition makes markets great. Today's patent laws kill it and encourages unbridled, royalty free, penalty free, infringement. Dine and dash. Legalized theft. The Wright Brothers could not build an aviation business under today's intellectual property laws. The pacemaker industry would not exist. Stents and neuro-modulation, DBMS, all invented by NPE's. Not manufacturers. Medtronic did not invent the implantable pacemaker. An NPE did. Protected by patent enforcement, now emasculated and hated by distorted PR and silent IP defenders. AIA threatens the rights of all private property. IP is just the first to come under attack. Why not a law that you cannot rent a property if you don't own 1,000 units? Or evict illegal squatters, unless you own commercial space? Where are the outraged patent attorneys? What if patent filers learn their ownership rights have been negated? Most do not have a clue what has been done to them. Is this why patent prosecutors are not enraged, but sit silent as inventor rights are trampled, banned and burns like books have been? Freedom has to be fought for to be maintained. Especially by our barristers. When they sell out, the nation suffers. Democracy demands balance. Fight inequitable laws, and conduct. AIA kills innovation by outlawing equitable enforcement by those embezzled, if they are sub-citizens. By the feudal lords. "Let them enforce cake."
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