I just finished a long article that attempted to look at what the past changes in the law, combined with ever-increasing changes in technology, means about patents. I didn’t try to add a whole lot to the literature about the cases — you know that almost every case the Supreme Court has decided this century has in some way negatively affected the strength of patents, making them harder to get (e.g., KSR, Nautilus), easier to invalidate (same and of course Alice, Myriad), and riskier to enforce (e.g., Octane Fitness). I also didn’t try to add a whole lot to the literature on how IPRs (and CBMs) have likewise negatively affected the strength of patents.
What I did try to do was look at what is happening, ever increasingly, which is that in many areas of technology time-to-market has become shorter, and, likewise, product life cycles have become shorter. We get new products more often, and so obviously they’re coming and going more quickly. In many instances, and in a growing number, the product can get to market long before a patent issues after the (average) 25 month pendency, and it may not be on the market long enough to recoup investment. There was some interesting analysis of those last two points.
Where we are increasingly at is a place where economics may not justify applying for a patent. Not everywhere, but more often, practitioners will find themselves in that place.
I have no idea the degree to which that is the case now, or the extent to which it will become the case more in the future. It is no doubt patent and industry specific. But if you combine the negative legal landscape with market realities, you see less need for patenting. The direction is clear; the degree, no idea.
Add to that mix the rise of 3D printing, and you can see that infringement will also be occurring in a diffused manner, by individual consumers, and in circumstances often hard to detect. (CADster should be a great domain name; grab it now.)
Competent practitioners should consider several things. One is to recognize that diligent prosecution is becoming more important for clients. Another is that examining whether to discuss with clients the use of Track One, PPH, or the pilot program (or the program — forget its name — that allows for accelerated examination when there’s an older inventor named).
Another is an odd provision in Section 154(d) that allows recovery of damages accruing after a defendant knows of a published patent application, to the extent that it “infringed” those published claims. Mailing copies of published applications to those who may infringe upon issuance may be good practice in some areas.
Anyhow, I’m about to head on vacation for two weeks, and thought I’d leave you with some broader thoughts.