Over the last decade or so patent rights in the United States have been eroded considerably. There are numerous different potential reasons for this. Although the United States used to be a haven for innovation, over the past 20 years the U.S. Patent and Trade Mark Office has been significantly shaken by technological change and also facing significant challenges from patent trolls.
Some experts in the field of intellectual property believe that the biggest impediment facing innovators today is the very system that was initially created to protect them. According to many judges, legal scholars, current and former USPTO officials, entrepreneurs and inventors, today’s patent system in the United States actually harms the entrepreneurial independent inventors.
What the Apple v. Samsung Case Illustrates about IP in Modern Times
In one of the cases between Apple and Samsung, Apple v. Samsung case has shown both the courts and the public how challenging it can be to protect designs in modern society. Some of the legal battles ensuing today have more to do with the actual aesthetic design of the phone when compared with the technology inside it. The two primary ways to protect such creations in the U.S. are known as design patents and “trade dressing.” In the Apple case, a Court of Appeals held that rounded corners were a functional feature, meaning that it would be seen as anti-competitive to allow one company to maintain a monopoly over them. This is just one example of the complexity at play in terms of designs and patents today.
Innovation is an important component of the American economy today, and the fact that pushing ideas forward may come at the price of not really being able to protect them could cause problems for coming up with these ideas in the first place.
According to one Stanford educated engineer who generated some of the key standards associated with today’s 4G phone networks, Greg Raleigh, it has become unclear whether a small company or start up can truly protect their creation, especially if the concept turns out to be a major one. Some others in the field refer to this as collateral damage. Still others will argue that it is the express purpose of major corporations in the United States to harm inventors. However, the end result is the same.
The concept of a patent troll was initially created at Intel in the late 1990s in the midst of the personal computer era. At that time, Intel’s Office for General Counsel was receiving daily threats from individuals who intended to litigate for patent infringement. While some of these were already established competitors hoping for cross-licensing deals, others were failed start-ups trying to get some value of their few remaining assets in the form of their patents. None of the plaintiffs involved in such cases were looking to sell or create products born out of the designs and concepts outlined in the patents. These plaintiffs were what could be classified as non-practicing entities and their primary mission was to use the threat of a lawsuit in order to pry licensing fees from a company.
These days, it is also easier to invalidate patents in administrative proceedings such as the PTAB. The Supreme Court has made it easier than ever to hold patents invalid because they are purportedly directed to an abstract idea. Furthermore, damage awards in patent cases have been greatly reduced and now the Supreme Court has reduced the value of designed patents as shared in the recent Apple versus Samsung case. This has affected small businesses in the United States the most as large companies and foreign companies can effectively infringe patent rights held by individual businesses and small companies without realistically having to pay damages.
If president-elect Trump is serious about protecting small businesses and protecting U.S. jobs, it must begin by strengthening the patent system again. Protecting U.S. innovations and thereby U.S. businesses by strengthening the patent system is a better option for protecting U.S. jobs and small businesses than imposing tariff on foreign companies which will likely encounter resistance at the WTO, the ITC and the like. Indeed, a strong patent system will prevent foreign companies like Samsung from willy-nilly infringing U.S. patents held by companies here in the United States and profiting on their expense. The major goal of lobbying efforts in the patent industry today wasn’t even to cut down on patent litigation or to kill trolls.
Do you have questions about patent concerns? Contact an experienced New Jersey intellectual property attorney today.