Next week I’ll visit Munich, labeled as one of most beautiful cities in Europe to present a paper and lecture at the Max Planck’s Munich Intellectual Property Law Center (MIPLC).
The subject of the talk is patent advocacy before the U.S. Supreme Court. My co-author James Conley and I have measured the patent advocacy of various types of firms when they file briefs before the highest court of the land. In the past few years, the Supreme Court has taken a more active role in shaping patent laws and policy. This is in contrast to Congress, which has largely stalled in the area of patent reform.
What are some of the key issues facing patent reform today?
First, there is the issue of first-to-invent vs. first-to-file. The U.S. is one of the few countries that follows the first-to-invent rule. In most other countries, whoever wins the race to the patent office gets the patent (first-to-file rule). According to one senior Patent Office official I spoke with recently, there is a strong chance we might adopt the first-to-file rule. Some believe this would favor large companies over the small inventor.
Another major issue is damages. Patent infringement damages, particularly if the infringement is found to have been willful, can be extremely high. Some advocates, particularly the larger companies, want to limit damages.
Some of the theses issues have been recently addressed by the Supreme Court, the topic of our research.
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