Shakeups to Patent Litigation May be in the Works

The Supreme Court and the United States Patent and Trademark Office (USPTO) are currently considering two legal changes that may substantially alter the landscape of patent litigation.

On March 31, 2014, the Supreme Court of the United States granted certiorari in Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., a case that asks the Court to determine what is the proper degree of deference appellate courts should pay to district courts’ claim construction rulings.  Currently, appellate courts review district court claim construction rulings de novo – which means no deference is paid to the district court’s ruling.  Because claim construction is the dispositive issue in many patent cases, forcing appellate courts to pay some degree of deference to district court claim construction rulings would further increase the importance of claim construction hearings and substantially affect the chances of filing a successful claim construction appeal.

The USPTO is also trying to clarify claim construction, albeit by different means.  The USPTO recently announced a pilot program whereby software patents can receive expedited processing if the applications contain a glossary defining patent terms.  Including such a glossary would clarify the patent.  But, if litigation over the patent later arises, the patentee would surely be bound to construe the patent terms as defined in the glossary.  If the pilot program proves successful, it would seem likely that the USPTO would try to implement patent glossaries on a much larger scale.

Both of these matters are part of the growing push to reign in patent litigation in America.  Anyone who deals in patentable technology should keep an eye on both the Supreme Court case and the USPTO pilot program, and should be aware of the overall push to reduce patent litigation.

 

Article written by Michael Keenan, Esq.  For more information contact Mr. Keenan at 607-723-5341 or via email at mkeenan@hhk.com.

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