Subtle Corruption? The Weakening of US Patent Rights

One of the troubling trends in US patent law, a trend I first heard about roughly a decade ago in a course “Drafting and Crafting Winning Patents” from Patent Resources Group, was the tendency for courts in patent litigation to twist the claims to limit their scope. Among the many examples of courts finding language or lack of language in the specification to import unintended and often questionable limitations into the claims is a 2011 case, Retractable Technologies, Inc. v. Becton, Dickinson & Co.. It took creative mental gymnastics by the court to rule that the “body” of the claimed syringe must not read on two-piece bodies, contrary to logic and evidence within the claims themselves. See the response of IP Watchdog to see how this decision may contradict fundamentals of established patent law. The Patent Prospector blog offers this view:

Somewhat subtlety, but most assuredly corruptly, the courts are on a continuing crusade to limit patent protection. In the past four years, the capriciously subjective Obzilla (KSR) has trampled many patents, where an objective evidentiary standard would have left them standing. In this episode, Retractable Technologies v. Becton, the crusade against patent enforcement continues, but from a different angle, with the CAFC distorting well-settled claim construction precedent to squeeze the scope of claims.

The courts seem increasingly ill-disposed toward protecting property and intellectual property rights, especially those of individuals and small companies lacking political clout. Is that due to corruption or just the twisted anti-property (well, anti-other-people’s-property) ideological bent that many of our leading universities impose on students? To be fair, many large companies also bemoan US patent law trends where intellectual property is increasingly taxed and stalled (e.g., through high costs and delay at the USPTO, and the siphoning of patent fees by Congress to pay for their excesses elsewhere), where claim scope is being limited, and where the capricious uncertainties and cost of litigation are ominous. To revive the US economy, there really is a need to strengthen innovation by strengthening and accelerating our patent system and strengthening, not diluting, property rights.

Meanwhile, here in China, there are serious efforts to strengthen enforcement of IP rights, to encourage patent pursuit (e.g., with generous tax incentives and some special incentives that local governments may add in some areas), and to facilitate enforcement. There is a rush in China to create IP and it will have profound long-term effects in terms of global competitiveness. I think that China will become the technology leader of the world and the IP leader, and the U.S. will pay dearly in the end–royalties and more. The U.S. needs to regain its IP and innovation momentum and abandon capricious judicial changing of the rules at the expense of innovators.

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