Different Policy Orientations Influence the Patent and Litigation Ecosystem

LES Nouvelles (March 2024), 43-49

7 Pages Posted: 12 Jun 2024

Date Written: February 1, 2024

Abstract

Different policy orientations influence the patent and litigation ecosystem. These add to the risks inherent to innovation taken on by the inventor: The technology of the invention may fail. The technology may not be commercially successful. It may be overtaken by a better innovation. In the
face of these uncertainties, the inventor should be entitled to enjoy a stable legal environment. There should be little risk that the legal rights associated with the inventor’s patent, its exploitation, and its enforcement are subject to frequent, abrupt change. The inventor should benefit from well-settled rules applied by neutral courts and by the patent office and other neutral expert government
agencies.

The authors were members of a panel held during the annual meeting in Chicago in October 2023 of LES USA & Canada. The panel reviewed the current situation across China, the European Union, and the United States. It seems that patent stability is being lost: patent rules and policy are influenced by election returns and turn over at regulatory agencies. And these are further impacted
by political concerns about national security, industrial policy, and national sovereignty.

This paper presents the view of the authors in respect of:

• The problematic provisions of a proposed Regulation on Standard Essential Patents, now being considered by the institutions of the European Union;

• Developments in U.S. regulation and proposed legislation, demonstrating across eBay (and other
Supreme Court decisions), PTAB and multi-agency guidance, the inconstancy of U.S. rules governing patents rights, and Congress’s attempts to offer to innovators greater certainty as to the legal environment and to business outcomes;

• A new (and welcome) approach to anti-suit injunctions in China; and

• The extent to which standards development organizations have the tools to provide greater clarity on licensing patents essential to their standards.

Keywords: Patent, Patent Licensing, Standard-Essential Patents, Standards, Intellectual Property, SDO, SEP

Suggested Citation

Eltzroth, Carter and He, Jing and Dini, Roberto and Iancu, Andrea, Different Policy Orientations Influence the Patent and Litigation Ecosystem (February 1, 2024). LES Nouvelles (March 2024), 43-49, Available at SSRN: https://ssrn.com/abstract=4827996

Carter Eltzroth (Contact Author)

Helikon.net ( email )

PO Box 3
Newburyport, MA 01950
United States
+1 202 302 2466 (Phone)

HOME PAGE: http://www.helikon.net

Jing He

Independent

Roberto Dini

Metroconsult Srl ( email )

Torinese
Italy

Andrea Iancu

Independent ( email )

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