Thought Leadership

Intellectual Property Report: August 2017

Client Updates

Making Patents STRONGER: The STRONGER Patents Act of 2017
Alex Waldrop
Patent reform has been a popular topic of discussion and public interest over the past few years, although little reform has followed the America Invents Act of 2011. Reform efforts have attempted to target the increased number of patent assertions by non-practicing entities but have yet to pass any significant legislation on the federal level. Some commentators have pointed to recent Supreme Court cases as alleviating some of these unresolved tensions by changing the scope of patentable subject matter and lowering the bar to obtain attorney’s fees. On the other hand, pro-patentee advocates have seen this evolving law and increased use of post-grant proceedings to invalidate patents as a threat to the security of their patent rights. The Support Technology & Research for Our Nation’s Growth and Economic Resilience (STRONGER) Patents Act of 2017 introduced by Senator Coon and co-sponsored by Senators Cotton, Durbin and Hirono attempts to provide stronger protections for patentees.

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Fate of the Despised — A Concise Chronicle
Dr. Frank Zhu
A troll is an ugly mythological creature that lives under a bridge, waiting to extort a hefty fee from whomever crosses the bridge. This vivid description of a patent troll often provides a sufficient reason to despise such an entity without giving it a second thought. However, missing from this picture is that the so-called patent trolls, often referred to as non-practicing entities (NPEs) or patent assertion entities (PAEs), actually own the bridge. A string of recent news reports seems to portray impending victory against the notorious troll: patent trolls were ordered to pay attorney’s fees; the original PAE law firm announced its shutdown; a number of PAEs have dramatically laid off employees; others announced that the environment has been so hostile and the business model is no longer feasible. However, today’s perceived success of the crusade against patent trolls may have come with a significant price.

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Patent Venue Questions for States With Multiple Districts*
David Tobin
The District of Delaware is the sole federal judicial district in its state, whereas Texas, California and other states each have multiple federal districts. This may seem like a geographic triviality, but the distinction between a single-district state and a multidistrict state may matter more after the U.S. Supreme Court’s May 2017 decision in TC Heartland v. Kraft Foods. The decision in TC Heartland may reopen a long-dormant split among district courts as to where a corporation “resides” for patent-venue purposes. For states with multiple federal judicial districts, does the corporation reside in all districts within the state of its incorporation, or does the corporation reside in only a subset of those districts?

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*This article first appeared in Law360, July 28, 2017.