In an economy where ideas are proprietary and litigation is widespread, protecting innovation through patent law is more necessary-and prevalent-than ever. Industries that thrive on innovation, including software, biotechnology and pharmaceuticals, regularly introduce new ideas into the marketplace, and require patents to translate them into profitable products.
In 1982, the U.S. Congress created the U.S. Court of Appeals for the Federal Circuit to handle patent-related appeals. Between 1982 and 2001, the Supreme Court saw a patent-related case approximately once every two years. But criticism that the Court of Appeals rulings favor patent holders has prompted the Supreme Court to take a more active role in patent law, hearing a record 11 patent-related cases since 2001.
Decisions made by both the Court of Appeals and the Supreme Court have dramatically changed patent law by changing several key definitions and procedures. As a result, businesses worldwide have had to adjust their business strategies accordingly, hiring more experienced and better trained patent professionals to guide the patent process and to determine when to take patent infringers to court.
Trends in Patent Law
In today’s fast-paced world of technological innovation, patents play a key strategic business role in translating new ideas into profitable innovations. Rapid technological advancement has paved the way for faster product development, while also increasing the number of patent applications filed each year. This year, the U.S. Patent and Trademark Office (USPTO) has received more patent applications than it has in its more than 200 years of existence, and has been criticized for the length of time needed for approving or denying new applications. In fact, patent application submissions worldwide have increased at an average rate of 4.7 percent each year since 1995.
With the U.S. Supreme Court playing a more active role in patent law, several trends have had a profound impact on the patent system. Cases such as Microsoft v. AT&T, KSR v. Teleflex, MedImmune v. Genentech, and Quanta v. LGE have addressed issues such as protecting U.S.-issued patents outside the country, the degree and definition of “obviousness” in a patent, and patent exhaustion.
While there are rules and laws that define the process and conditions under which a patent application is approved or denied, there clearly is still much room for subjective interpretation, as evidenced by the Supreme Court’s increasing interest in patent-related cases. Several key statistics have pointed to the impact these cases have had on the practice of patent law. According to figures recently released by the USPTO, the approval rate on new patent applications has dropped from above 70% in 2001 to under 55% in 2007, while the number of appeals to the Board of Patent Appeals and Interferences (BPAI) has grown by nearly 30% over the past year.
These trends suggest that, with so many patent applications being rejected, the appeals process has become a necessary step in obtaining patents. However, this extra step is likely to cost businesses more time and money, as appeals cost approximately $5,000 each. Companies that rely on patents to drive revenue now require patent attorneys and agents who can handle the appeals process in a cost-effective manner. Thus, companies like IBM, which received more than 3,000 patents in 2007 and regularly earns more patents than any other U.S. company, will pay upwards of $15 million per year to attain the patents it needs to deliver innovative products to the marketplace.
Add to the cost the 24 to 36 months needed to obtain a patent, and it is clear that businesses rely on highly-trained legal professionals to guide new inventions through the patent process. Because the process for obtaining a patent is so complex and time-consuming, a skilled patent professional can save a company money if he or she has a detailed understanding of the law, as well as knowledge of how to properly apply it.
The Patent Reform Acts of 2005 and 2007
The continuing criticism of the current patent system have led to the proposed Patent Reform Act, federal legislation that, if passed, would affect sweeping changes in the U.S. patent system. The bill calls for a number of key changes, including making the U.S. patent system a “first to file” system (it is currently a “first to invent” system), as well as a variety of procedural revisions that would have an impact on how patents are filed and processed.
First introduced in 2005 by Rep. Lamar S. Smith (R-TX), the bill did not survive judicial committee hearings. In 2007, Rep. Howard Berman (D-CA) reintroduced the bill, where it passed in the U.S. House of Representatives and is still under consideration in the U.S. Senate.
Should the bill pass, the patent legal industry will likely find itself transformed, while more cases than before will likely end up in court to challenge the new laws. However, it is unclear when the bill will move forward in the legislative process, leaving the current patent system in its current form, along with all its current challenges.
Patent Law Education
Patent professionals are the gatekeepers of innovation who can secure the success of tomorrow’s breakthrough technologies and ideas, and the up-tick in controversial changes in patent law has fueled the need for skilled patent professionals.
Patent professionals are either attorneys, who have law degrees and can litigate, or agents, who can submit the forms to obtain patents but cannot represent their clients or employers on patent-related cases in court. Both professions require a science background as well as a passing grade on the Patent Bar Exam.
The ever-changing backdrop of innovation and re-interpretation of the patent system’s rules and laws requires professionals to keep their knowledge fresh in order to effectively apply the law to real-world intellectual property issues. State bar chapters as well as non-profit and for-profit legal education firms often offer courses in patent law, some of which qualify for Continuing Legal Education credits.
Many of these organizations offer courses in a variety of types of law, but educational firms that specialize in patent law set the industry standard for providing patent professionals with the indispensable and comprehensive knowledge required to practice and apply patent law.
Post-graduate training is essential for professionals to become specialized in patent law and to attain the highest levels of achievement in their field. Organizations that provide training are more up-to-date than academia, and well-trained professionals are better equipped to apply their comprehensive and indispensable knowledge of the law to providing patent services.
 “The Supreme Court Returns to the Patent Law: Why Now and What’s Next?” WilmerHale. July 25, 2008 http://www.wilmerhale.com/about/news/newsDetail.aspx?news=1198, (last accessed 9/4/08).
 “Patents and Innovation: Trends and Policy Challenges” Organization for Economic Co-Operation and Development. 2004.
 WIPO Patent Report: Statistics on Worldwide Patent Activity (2007 Edition). http://www.wipo.int/ipstats/en/statistics/patents/patent_report_2007.html#P192_14573, (last accessed 9/4/08).
 “IBM Grabs Top Spot in Patent Race,” Jeff James. WindowsITPro. http://windowsitpro.com/article/articleid/98024/ibm-grabs-top-spot-in-patent-race.html, last accessed 9/4/08.