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The wind of change appears to be blowing in the patent world. Prompted in part by a report issued by the Federal Trade Commission in 2003, the U.S. Patent and Trademark Office (PTO), Congress and now the U.S. Supreme Court have responded to a perceived need for change. There is no united voice from industry or the patent community as to what change is necessary. Some argue that the changes will result in the issuance of stronger patents and reduced litigation. Others argue that the changes will unfairly narrow the ability of patent owners to obtain or enforce patents, and thus discourage investment in innovation. Despite these divergent perspectives, few would disagree that the changes come at a time when intellectual property is viewed as more valuable than ever before. The Supreme Court’s current attention to the patent arena might be viewed as an inevitable step, sparked by one of the earliest organized calls for change by the Federal Trade Commission. See, e.g., FTC, “To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy” (October 2003), www.ftc.gov/os/2003/10/innovationrpt.pdf . The FTC raised alarms about the ease of getting patents, the low quality of patents issued, the expansion in scope of what constitutes patentable subject matter (such as “business method patents”) and the high cost and increasing volume of patent litigation. All of this is exacerbated, in the view of the FTC, by entities, referred to by the FTC as “non-practicing entities,” or more colloquially as “patent trolls,” that do not practice their inventions and seek to extract royalties and damages from businesses that they accused of infringing. Id. at Executive Summary at 7; Ch. 3 at 38-39. Similarly, the PTO issued its 21st Century Strategic Plan, which proposed sweeping changes in the patent system. See www.uspto.gov/web/offices/com/strat21/index.htm . In the ensuing years, the PTO has continued to propose significant changes in the processes by which the PTO examines claims in patents, 71 Fed. Reg. 61 (Jan. 3, 2006), and by which patent applicants can pursue continuation applications, 71 Fed. Reg. 48 (Jan. 3, 2006). These changes at the PTO would limit the number of continuation patents that can issue many years after the initial application and that can claim inventions that have been in common use for years before the patent issues. The U.S. Congress has introduced legislation that would also limit the leverage of patent owners by, among other things, changing the U.S. system from a “first to invent” to a “first to file” system, limiting the availability of treble damages and allowing post-grant administrative challenges to the validity of patents. Patent Act of 2005, H.R. 2795, 109th Cong. (2005).
SUPREME COURT REVIEW
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