A University of Kansas Patent Law professor explained the significance of a Supreme Court case, Oil States Energy Services v. Greene’s Energy Group that was argued before that court Monday.
“In this case, what they’re talking about is whether patents are private property, or whether they are some sort of license, granted from the government,” said Andrew W. Torrance, Earl B. Shurtz Research Professor at the University of Kansas School of Law. “In the latter case, the government can give them and take them away. In the prior case, if they were private property, the administrative board that is currently set up in the Patent and Trademark office, and which is at issue in this case, would not have a Constitutional right to take patent rights away, once they were granted.”
This fundamentally goes back to what a patent is, in its origins as a legal right.
“One of the fascinating aspects is that both sides have been digging back into English law up to 800 years ago, to try and figure out what exactly a patent used to be when it was granted by the Crown in England, whether it was something that could be reviewed by the Crown, or something that required a jury to overturn,” said Torrance.
The Patent Trial and Appeal Board that was created with the passage of the America Invents Act in 2011 is acting in a way that some would say weakens the strength of patents overall.
“They have been nullifying a lot of patents over the last couple of years,” said Torrance. “It’s a relatively inexpensive process, you can do it fairly quickly and some people have called it the patent death court. What folks are worried about who think strong patent rights are a good thing is that it’s too easy to lose the patent right.”
The previous system required you to challenge the patent in Federal court before a jury.
“Those who say that patents are important for innovation also say that this should be a private property right and very hard to lose once you get it,” said Torrance. “Other folks say patents are being misused by patent trolls, companies that don’t actually produce anything. Instead, they acquire a bunch of patents and then they sue vulnerable companies, hoping for a lucrative settlement.”
The purpose of the Patent Trial and Appeal Board is thought of by some to be a good guard against patent trolls. Whether a strong or a weak patent is more advantageous may simply come down to what kind of a company you are.
“If you’re a company that makes a lot of copies, or that wants to be free to make whatever sorts of products you want to make without having to pay license fees to patent owners, it actually makes that kind of business much easier to conduct,” said Torrance. “If you are a company that relies on research and development to develop groundbreaking technologies and protects those with patents and then wants to be compensated for the research and development by
being able to have a monopoly on selling or making or licensing that particular technology, then you want the right to be very, very strong and you don’t want the patent right to be easily overturned.”
There is no word on when the U.S. Supreme Court will issue its decision in the case.