The Top IP Topics to Watch in 2021
HOUSTON, January 4, 2021 - As we look ahead to 2021, Baker Botts Intellectual Property partners have identified several trends to watch in the Intellectual Property arena in the year ahead.
Christa Sanford, Deputy Chair of the Intellectual Property Department
“In 2021, we anticipate that the Biden administration will likely replace the current United States Patent and Trademark Office Director, Andrei Iancu. A potential new director may be less pro-patent and more accommodating to patent challenges before the Patent and Trial Appeal Board. After Iancu’s confirmation in 2018, we saw a significant decline in PTAB filings in 2019 from previous levels. A new director may bring a different perspective as it relates to discretionary denials and patent eligibility.”
Eliot Williams, Chair of the Palo Alto IP department
“In 2021, the PTAB will face yet another existential threat to its existence at the Supreme Court, with the Court set to decide if the PTAB’s Administrative Patent Judges are properly appointed under the Appointments Clause in United States v. Arthrex. A decision in that case has the potential to create disruption at the PTAB, as many PTAB final written decisions over the last dozen or so months might have to be redone by new panels of APJs. That, plus a controversial anticipated rulemaking regarding the PTAB’s practice of discretionary denials of PTAB Trial petitions, and uncertainty over whether Congress will re-authorize the Covered Business Method Review program, which ended in September will make 2021 another exciting year for PTAB watchers.”
Lisa Kattan, International Trade Commission Practice Group Chair and the Chair of the Washington D.C. IP group
“We expect that the ITC’s 337 caseload will remain at historically high levels in 2021. While patent infringement high-tech investigations will remain a staple of the docket, increasingly diverse industries will continue to look to the ITC to block unfair imports of competing products. We expect the increase in non-statutory causes of action, such as trade secret misappropriation, to continue to rise. Important Commission-level decisions related to domestic industry, injury, importation, and other 337-specific law are anticipated in 2021 as well.”
Doug Kubehl, Practice Group Co-Chair in IP Litigation
“We expect patent case filings to continue to escalate in 2021, both by non-practicing entities and among competitors. Suits by non-practicing entities likely will continue to grow, fueled in part by increased resources available from litigation funding investment firms. With additional capital available from the funding firms, look for filings among companies or individuals not otherwise able to financially support a lawsuit to continue to increase.
We also expect patent battles among competitors to escalate. As companies see diminishing rates of return from further cost-cutting measures, expect them to examine alternative monetization opportunities. For industries where traditional revenue generating mechanisms are suffering greatly, look for companies to turn to their patent portfolios to protect the remaining business they have.”
Jennifer Nall, Intellectual Property Partner
“The Supreme Court’s upcoming decision regarding the appointment of Administrative Patent Judges in Arthrex is a going to be a significant decision for patent law and patent litigation strategy. That decision has the real potential to have major implications for other governmental agencies.
Very little is known about Justice Coney Barrett’s views on the intricacies of intellectual property law. In 2021, we will start to learn about her views and inclinations.”
Steven Lendaris, Sector Chair of Life Sciences IP Practice group
“One area that is sure to be a hot topic in 2021 is how courts balance the scope of enforceable life science patent claims relative to the amount of technical data the patentees provide in their applications. Currently, there are several cases with the potential for billion-dollar judgments pending before the Supreme Court and the Court of Appeals for the Federal Circuit, all turning on questions of scope and support.
This is a significant shift from the recent focus on the patent-eligibility of life science-related claims and these cases are likely to have a significant impact on the ability of companies to protect their investments in new therapeutics.”
Paul Morico, Sector Chair of Energy IP Practice Group
“2021 will continue to be a challenging year for the energy markets given the lingering effects of the COVID-19 pandemic, which will continue to keep oil and gas prices depressed at least during the first half of the year. We will continue seeing historic layoffs by the independents and big oil during this unprecedented time. We expect this to continue a trend that started several years ago of increasing claims for misappropriation of trade secrets among energy companies.
The confluence of employee layoffs due to the downturn with a recent rise in energy start-ups and establishment of caselaw around the Federal Defend Trade Secret Act (“DTSA”) enacted by Congress in 2016 and the Texas Uniform Trade Secret Act (“TUTSA”) enacted by the Texas legislature in 2013 will continue to fuel a rise in such claims in 2021 and beyond.”
Luke Pedersen, Co-Chair of the Tech Transactions Practice Group
“Rights in data and information will be a key driver in business transactions in 2021. This will bring potential liabilities associated with the collection, manipulation, storage and distribution of data to the forefront of negotiations of business transactions. As is so often the case in the exploitation of new technologies (e.g., AI, IoT), statutes, rules and regulations governing their use have not kept pace with the way they are being used within the industry.
In their efforts to keep up, regulators at the local, national and international level are promulgating volumes of onerous restrictions that create substantial potential liabilities that are difficult to assess and predict.”
To schedule an interview with our partners, Christa Sanford, Eliot Williams, Lisa Kattan, Doug Kubehl, Jennifer Nall, Steven Lendaris, Paul Morico or Luke Pedersen please contact Alliccia Hernandez.
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