1. Intellectual Property Caseload
2. Patent Problems

There are many cases on intellectual property rights. The concept of intellectual property (IP) is becoming increasingly popular, as it is important for companies to ensure that any potential violations of their IP rights are immediately addressed. Even more important is the protection of IP rights, including trademarks, copyrights, and patents. When any one of these protections are violated, an IP lawsuit is usually brought by the victim against the infringer. During such lawsuits, the judges and lay juries usually decide any technical issues related to the case.

Intellectual Property Caseload

As more IP lawsuits are introduced into the court system, judges are faced with reviewing old case law. With that said, judges must conform to the new technology, i.e. Internet, to determine whether or not a defendant knew or should have known of the plaintiff’s IP rights. To identify the significant increase in case law, we can look at the increased percentage of IP lawsuits being brought in the U.S. court system. Over the years, the case numbers have increased tremendously, and will continue to increase as technology, design, machinery, etc. are created by businesses big and small.

The increase in cases is also being fueled by the difference in rulings, which is being determined by different judges with different opinions. Since there is a failure of consensus on such issues, there is often a difference in case outcomes depending on the judge hearing the dispute. The reason for this is because such judges aren’t familiar with the complex IP jargon and other technical terms. One of the biggest questions that the judge must answer when hearing such legal disputes is whether or not software can be patented.

Patent Problems

There are also problems in the court system with regard to patent case outcomes, particularly with software patents. In 2011, the U.S. Patent and Trademark Office (USPTO) granted approximately 125,000 software patents, which is an increase from roughly 25,000 in 1991. One of the reasons for the influx of IP legal suits is due to “patent trolls.” Patent trolls are companies that operate as patent-holding companies of one or more patents for the sole purpose of either licensing it out or litigating potential infringement. For example, a patent troll might obtain patent rights over an invention that is not its own. Thereafter, the patent troll company will look online for hours and hours to try to find another company that could be inadvertently using the invention attached to the patent. The patent troll business will then bring a frivolous lawsuit. In fact, from 2007 to 2011, litigation increased solely due to such patent trolls.

Depending on the type of business one owns, the patent protection could be different. For example, some products could have one or more of the following:

  1. Design
  2. Utility
  3. Plant

The design patent will protect the actual design of the product. The utility patent will protect the machinery or algorithm that assisted in the creation of the product. The plant patent, as its name implies, will protect the creation of a new plant species, which is generally used in the farming industry.

In 2011, the U.S. Congress created the America Invents Act, which attempted to engage in patent reform, understanding that there was a great need in reducing IP litigation. However, patent lawyers have noted that the problem lies with the U.S. Court of Appeals for the Federal Circuit, which is specifically dedicated to handling patent cases, but has failed to provide proper guidance to the lower courts.

Furthermore, the Federal Circuit Court’s handling of such patent litigation is weak, as a recent case resulted in a split (5:5) with the judges having no clear resolution in the case. Therefore, the case will go to the Supreme Court, a court which generally provides less protection for patent rights.

Another example is a case that was heard in 2006 when the Supreme Court unanimously found that judges shouldn’t issue injunctions when they determine that patent infringement occurred. The higher courts usually favor technology companies more than pharmaceutical companies, which can be difficult for such pharmaceutical companies battling in a patent suit costing millions of dollars.

If you need help learning more about the different IP cases, or if you need help litigating your IP case, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5-percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law, and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.