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Friday, February 6, 2009
Inside Legal Services
One firm’s outlook on IP law in 2009
By Mass High Tech staff
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The year 2009 could see the entry of new leadership and new rules at the U.S. Patent and Trademark Office, and those moves, combined with some 2008 court decisions, will help to shape the issues and challenges that intellectual property attorneys face this year.
Boston IP law firm Wolf, Greenfield & Sacks PC recently outlined the key issues that its attorneys see shaping their sector of the legal world, starting with indications by President Barack Obama’s administration that patent law reforms and an IP czar may be on the way.
Wolf Greenfield shareholder Steven J. Henry said in a recent report that patent office rule changes could hit biotech and pharmaceutical industries particularly hard by reducing effective patent protection for them. In addition, the patent office is waiting for the Federal Circuit Court of Appeals to rule on planned changes in patent office rule-making powers.
Henry also said that the patent office will help to implement new guidelines for how to handle business-method patents. In the wake of the U.S. Court of Appeals for the Federal Circuit’s October decision restricting business-method patents, lawyers will be watching to see how the office will apply the ruling in the so-called Bilski case.
Wolf Greenfield outlined several other issues that IP lawyers will be tracking:
• Texas “rocket docket” to be grounded? The U.S. District Court for the Eastern District of Texas has become a popular destination for plaintiffs’ attorneys seeking a friendly venue. In December, an appeals court ordered an Eastern Texas judge to transfer a patent case to Ohio. Wolf Greenfield said the decision is likely to lead to more case transfers, and could cause patent owners to cease filing infringement cases in that district, which is known for its streamlined rules.
• No more willful infringement cases? Wolf Greenfield expects more court decisions during 2009 to further define the standard for determining willful infringement, which was set by the Seagate case last year. Attorneys will watch to see if willful-infringement cases die out or if patent owners will find a way to circumvent the scope of the decision.
• The U.S. Patent Office and foreign patent offices move to streamline patent applications. Henry said there is growing cooperation among patent offices in an effort to manage increased workloads by reducing the duplication of efforts. he said this could start to clear the growing backlog of patent applications at patent offices worldwide.
Court shopping
Cited by attorneys nationwide as being “plaintiff friendly” in patent cases, the Eastern District Court for Texas was home to three times as many patent case filings in 2008 than all of the New England states combined.
Fighting it out
Massachusetts led its neighboring states in the number of intellectual property cases filed in 2008 in federal district courts.
Nuts and Bolts
Hardware — chips, telecom, lighting and other hardware types — was the key factor in technology-oriented patent cases filed in Massachusetts.
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