Intellectual Property 2015 Year In Review

January 29, 2016 Advisory

Introduction

As discussed in greater detail below, there were a number of notable developments in intellectual property law in 2015.

Patent eligibility challenges to the validity of software, business methods, and medical diagnostic methods continued at a record pace. 2015 also saw the introduction of a new pleading standard for patent suits, which require plaintiffs to file complaints that are more detailed about the alleged infringement. By the end of 2015, we also concluded three years of operation of the new statutory framework provided by the America Invents Act (AIA), which introduced new post-grant procedures for challenging the validity of patents at the U.S. Patent Office. Inter partes review continues to be used as a potent weapon against patent owners. Policymakers also continued to focus on standards-essential patents, with the IEEE adopting new rules designed to curtail inflated valuations and abusive licensing practices.

Key appellate and Supreme Court decisions tackled a variety of issues in the past year, bearing on strategies in the prosecution, litigation, and licensing of intellectual property . These include the standard of review of lower court claim construction decisions, the standard for liability for induced infringement when multiple actors are involved, registration of disparaging marks, and patent misuse in the context of patent licensing . Cases also teed up significant issues that may be decided by the Supreme Court in the coming year, including whether foreign sales trigger patent exhaustion and whether the current test for willful infringement is too stringent.

In the current climate, one in which the eligibility – and hence validity – of many software and business method patents has been thrown into question, and one in which challenging the validity of patents under the AIA has proven quite successful, patent owners would be wise to review their existing portfolios and prosecution strategies and develop strategies to address these changes.

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