After the America Invents Act – The State of US Patent Infringement Litigation
Sarah C. Columbia
This lecture will cover two related topics – (1) the effect of the newly created post-grant proceedings on US patent infringement litigation; and (2) recent developments in US judicial precedent and how those developments are impacting the US patent system.
The lecture will begin with a short, basic outline of the America Invents Act, followed by a dis-cussion of its intended and unintended consequences on practice in the United States Patent and Trademark Office ("USPTO") and in the US Courts, including a discussion of recent trends and statistics. We will also cover the pending legislative proposals aimed to fix perceived problems and some of the anticipated changes in the legal landscape.
The lecture will continue with a presentation of the most important recent decisions by the US Supreme Court and the Federal Circuit Court of Appeals, including Alice Bank, Highmark, Oc-tane Fitness, VirnetX, Apple v Samsung and others, with a focus on the impact those decisions are having on US patent litigation and on the strategies being employed for the protection of intellectual property in the United States. In particular, we will discuss the increased pressure on patentable subject matter in both the high tech and life sciences fields in light of Alice Bank and Mayo, the impact of Highmark and Octane Fitness on the award of attorneys' fees and how that is influencing behavior, and the changing strategies in light of the downward pressure on damages awards in light of VirnetX, Apple v Samsung and other decisions.