Patent Outlook Improving, Experts Say at MDMA

Patent troll cases filed against devicemakers have dropped dramatically in the wake of recent legal challenges, an attorney says.

Stephen Jensen, a partner with Knobbe, Martens, Olson and Bear, says patent law case filings have dropped from about 700 per month at their peak in 2012 to roughly 300 a month now, mostly due to recent U.S. Supreme Court rulings and legal changes. For example, a legal requirement that patent trolls file each case individually stops them from issuing claims against several dozen patent-holders at the same time, Jensen told attendees at the Medical Device Manufacturers Association annual meeting in Washington, D.C.

Further, of 119 cases where patent holders have asked to be reimbursed court costs, they were successful 58 times. Previously, “that would have been zero,” Jensen says.

Recent U.S. Patent and Trademark Office trends, such as an increase in inter partes review cases, 68 percent of which go to trial, also favor innovators, Jensen says. More than a third of patents reviewed through this process are found to be unenforceable, yet legal fees can exceed $100,000.

Currently, the Federal Circuit is reviewing a case, Lexmark International v. Impression Products, which questions whether use restrictions on product packaging are enough to prevent other manufacturers from making generic accessories for the products. The court has asked for amicus briefs on the question, Jensen says.

Since the Supreme Court’s Alice Corp. v. CLS Bank decision in 2014 made it harder to patent steps in a process, 76 of 99 cases on similar issues that went to trial resulted in the patent being struck down, Jensen adds. Another important case for devicemakers, Nautilus Inc. v. Biosig Instruments Inc., says patents have to be specific to apply. Previously, patents could be held valid as long as they were not “insolubly ambiguous,” Jensen says.

According to Angela Sykes, director of USPTO’s technology center, the agency issued 14,000 medical device patents in 2014, more than double the historic average. The agency established a new Office of Patent Training to bring examiners on up to speed on current patent issues, including patent subject matter eligibility. — Elizabeth Orr