By John L. Rogitz of Rogitz & Associates
With all three branches of the United States government resolutely eroding the value of U.S. patents, it may be time to consider a new patent filing paradigm: partially offshoring protection of intellectual property.
The Supreme Court has reduced the availability of injunctive relief for patentees (the Ebay case) and the Federal Circuit (Morrison Knudsen) has chimed in by raising the bar of willfulness and, thus, lessening the prospects for enhanced damages. At the same time, the Supreme Court (KSR) has made it easier to invalidate every patent in existence even as the Federal Circuit has opened an entirely new Pandora's box of inequitable conduct (McKesson). A contemporary patentee who is the victim of infringement and who manages to dodge the bullets aimed at its patent at best can count on a reasonable royalty and not much more.
The executive branch in the person of the U.S. Patent and Trademark Office is approaching the belief that patents rights have grown too strong differently, most notoriously by a failed attempt to limit the number of patent applications and claims that an inventor can file. The PTO has also established, as a proxy for "quality", a declining allowance rate (for example, in a December 2006 posting on its website), as if quality materializes from obstructing one's customers from gaini...