United States patent law trends to watch in 2018

The legal system in the United States is a living organism. Congress writes laws and the courts interpret the laws. When congress writes a new law or the courts interpret a law in a new way, that change has a significant impact on the United States legal system. Patent law in the United States has recently been changed by both congress and the courts. Congress introduced the American Invents Act in 2011 which has significantly changed the patent law landscape. Various courts have issued rulings which have also changed the patent law landscape.

What are some trends in United States Patent Law worth watching in 2018?

Change in Venue rules for patent litigation – Normally the Rules of Civil Procedure require that a defendant have some connection to the venue, the location of the court, where the lawsuit is filed. A 1990 Federal Circuit ruling created an odd venue rule which allowed just about any court in the United States to have venue over a defendant in a patent lawsuit. This odd rule meant that patent lawsuit plaintiffs would frequently file patent lawsuits in the Eastern District of Texas Federal Court, because juries in that venue were more likely to find for patent plaintiffs. TC Heartland LLC v. Kraft Food Brands Group LLC reversed the odd venue rule from 1990. This means that a patent infringement defendant are not treated like defendants in any other civil trial in the United States. Some would argue that it is a return to sanity. Some experts estimate that 1000 fewer patent infringement cases will be filed in the Eastern District of Texas because of this ruling. Whether the total number of patent infringement cases filed in 2018 drop, is something to watch.

Sovereign Immunity – Both state entities and native american nations have attempted to shield their patents using sovereign immunity. Sovereign immunity has given some patents protection in certain circumstances, but the concept is on thin ice. Sovereign immunity seems to provide patents with a defense if someone wants to invalidate a patent. But, sovereign immunity is deemed waived if the sovereign patent owner sues for patent infringement. Also, the idea of a private company transferring a patent to a sovereign entity purely to defend the patent from attack does not sit well with many lawmakers in the United States. Some law makers have already proposed new laws which would limit sovereign immunity claims in patent matters. Such a law would certainly be challenged as unconstitutional because sovereign immunity is part of the United States Constitution. How far sovereign immunity is pushed to protect patents in 2018 is something to watch.

Patent Trial and Appeal Board – Oil States Energy Services, LLC v. Greene’s Energy Group, LLC is a case which was argued before the United States Supreme Court and the court’s decision will be released soon. The crux of the case is whether the crown jewel of the America Invents Act, the Patent Trial and Appeal Board, is constitutional. The Patent Trial and Appeal Board is an administrative law body of the United States Patent and Trademark Office which decides issues of patentability. The Patent Trial and Appeal Board was supposed to help streamline the process of invalidating bad patents. Critic of the Patent Trial and Appeal Board say that it violates the 5th amendment of the United States Constitution because it can deprive people of property without a trial. Advocate of the Patent Trial and Appeal Board claim that it is part of the United States Patent and Trademark Office and because the United States Patent and Trademark Office issues patent, it can invalidate patents which were granted by mistake. Whether the United States Supreme Court finds these arguments persuasive is something to watch in 2018.

Even though the American Invents Act was signed in law in 2011, it has taken that long for challenges to the law to wind their way through the court. 2017 was an exciting year for patent law spectators and 2018 should prove to be just as exciting a year.

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