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The year 1790 was a very different time, but interestingly enough, the first Patent Act passed in the states wasn't that different from today's system. Sure, there were some differences (patent examinations were conducted by the the Secretary of State, the Secretary of War, and the Attorney General, instead of trained patent examiners), but the system then faced some of the same issues that it does now: patentability, jury trials, and fee-shifting.
As a nod to the history of our beloved Patent Act, here are a few of those issues, along with some possible solutions:
In 1790, the statute granted patents to the "useful Arts," which according to Wikipedia, included the work of skilled workers and artisans, especially engineers and manufacturers.
Sound familiar? The Supreme Court is set to hear disputes over whether software is patentable in the near future.
The early system also had issues with the examination process, with a subsequent 1793 law dropping patent examinations altogether, because Thomas Jefferson was too busy to review patent applications. Now, thanks to the America Invents Act, we have examinations, re-examinations, and inter-partes reexaminations, with Covered Business Method review as a much debated possible reform.
Infringement cases were initially brought before a jury, and indeed, they still are.
Does this make any sense? Why do we have juries of laypeople deciding complex issues of patent infringement? Or judges with criminal law backgrounds handling patent construction? This may just be a pet peeve of mine, but it seems like an increasingly untenable system, especially considering the cost of a trial and the unavoidable appeal when a confused judge and jury misconstrues complicated tech patents.
Plus, there is the issue of venue shopping, as certain district court judges and juries are known for being more friendly to patent holders.
According to Wikipedia, the first Patent Act did have limited fee-shifting, but it was only if a party challenged a patent in court as infringing upon their own patent. If such a challenge was lost, the party that brought the suit would be responsible for costs.
Today, there has been much discussion of fee-shifting as a means of fighting patent trolls. The President, Chief Judge Randall Rader of the Federal Circuit, and proposals floating through Congress all address the issue. Rader wrote an op-ed encouraging judges to use their inherent powers to grant fee awards to prevailing parties more often (only 20 out of nearly 3,000 patent cases in 2011 resulted in an award of fees). He has also continuously, in dissenting opinions, lamented his circuit's overly strict standard for fee-shifting.
The U.S. Supreme Court recently heard arguments in two cases that deal with patent trolls, fee-shifting, and the Federal Circuit's uniquely heightened standard. Opinions are expected at some point later this term.
There are dozens of patent law reform proposals floating around right now. What's your favorite? Tweet us @FindLawLP.