Taking Stock and Looking Ahead: The Future of U.S. Patent Law

Abstract

Reviewing recent developments in U.S. patent law and patent policy with an eye towards the future is no easy task - the temptation is too great to speculate on the entire future of patent law and the patent system. That said, there is no crystal ball or legal or empirical test that might predict the future of patent law and policy.

This essay contends that recent developments in patent law and patent policy illustrate four trends which will bear on any patent possibility in the future: continued active shaping of patent law doctrine and patent policy by the Federal Circuit; the U.S. Supreme Court’s significant, renewed interest in patent law; recent legislative changes to the patent law, including statutory reform and judicial reform with the passage of both the AIA and the pilot patent specialization program in designated judicial districts; and the ripple effects of these developments on the patent system as a whole.

Importantly, recent patent legislative reform illustrates that two clear stakeholders are coming to the fore - large pharmaceutical/biotechnology/life science companies and large information technology companies. Any patent possibility that includes a unitary patent system - the same patent law for all technology sectors - must account for these stakeholders’ differential reliance on patent assets to appropriate benefits from the marketplace for their innovations lest the motivation for a continued unitary system may be lost. It is also clear that Congress is interested in bringing U.S. patent law into conformity with popular international law. In many ways, it is possible to see the AIA as a move towards that goal as well as a unitary solution for Pharma and IT, with the possible concern that it comes at the expense of discouraging innovation by start-ups and small business. These are indeed exciting times for patent aficionados.