patent reform billOn September 16, 2011, President Barack Obama signed into law the America Invents Act, a statute which may bring about the most comprehensive overhaul to our nation’s patent system since 1836.  The America Invents Act promises to bring United States patent law into conformity with international patent law (a necessity in a global-market).  One of the ways in which it will do so is by effectuating a change from a “first to invent” to a “first to file” system.  In addition, the Act restricts the way defendants may be joined in patent litigation.  The White House maintains that the changes in the patent system brought about by this Act will spur the creation of jobs, cut red tape, and reduce unnecessary patent-related litigation between competing innovators.  There are numerous critics, however, who believe the Act will, in fact, kill jobs, deter innovation, and harm small business at the expense of large corporations.

A patent is a set of rights furnished an inventor relative to a new object, process or design.   The patent system is intended to protect the inventor from competitors by providing the inventor the exclusive rights to market, manufacture, and sell the invention for the term of the patent.  This right is bestowed upon the inventor by the United States Patent and Trademark Office (“USPTO”), in exchange for making the invention available to the public.  In order to obtain a patent, the inventor must submit an application to the USPTO, and provide a list of “prior art” from which their invention was derived.   In order to receive a patent, an invention must be “novel” or take the “non-obvious” next step of a prior invention.

Although the America Invents Act touches on virtually every aspect of patent law, perhaps the most significant change in U.S. patent law will result from the enactment of a “first to invent” system of patent registration, a system currently employed internationally.   Under the current U.S. system, when there are rival patent applicants, the patent is awarded to the applicant who was first to invent the subject of the underlying patent, regardless of who filed their patent application first.  Although this system seems fair, it often leads to lengthy and expensive litigation, as both applicants attempt to prove that they first conceived the subject idea.   Moreover, the current system allows an inventor who conceived an idea, but who is not taking steps to realize their innovation, to stand in the way of other inventors who invest time and money to bring a similar idea to fruition.  In other words, many times the current system employed in the United States stands in the way of innovation rather than promoting it.  Under the “first to file” system, however, a patent is awarded to whomever first files their patent application.  The new system should provide a bright line rule which is expected to reduce litigation between competing applicants and diminish the backlog of applications, which currently stands at roughly 750,000.  In addition, by forcing inventors
Continue Reading Benefits of a “First To File” System; Examining The Patent Reform Bill

The financial crisis and subsequent fallout has been widely publicized, and now the effects are beginning to reverberate in courts across the country.  In many jurisdictions deep cuts to state budgets have led to layoffs, furlough days, vacant judicial positions, and even courthouse closings.  These cuts threaten one of the pillars of the American justice system—the right to a fair and speedy trial.  Recently, the Massachusetts Supreme Judicial Court (“SJC”) took the unusual step of publicly criticizing Governor Deval Patrick after he approved a budget which the Court says will force them to close courthouses and lay off staff.  Roderick L. Ireland, Chief Justice of the Massachusetts Supreme Judicial Court, and Robert A. Mulligan, Chief Justice for Administration and Management, remarked that the new budget will jeopardize defendants’ Constitutional right to a speedy trial, and undermine the quality of courthouse services. According to the SJC and Mulligan, Massachusetts courts have lost over 1,100 employees in recent years and more than 60 percent of the courts are staffed below the level necessary to ensure the prompt delivery of justice.

Meanwhile in California, all courts are currently closed one day a month as a cost-saving measure. At least 19 of 580 Los Angeles County courtrooms were closed and as many as 50 more are to be closed by September. In San Francisco, 200 Superior Court employees, more than 40% of the staff, will be laid off on September 30, and many courtrooms are to be closed by October 3.

Significantly, in California, the law gives priority to criminal cases, so nearly all the shuttered courtrooms will be those currently devoted to civil cases.  It remains to be seen what impact this will have on litigation in California, but it is likely that many plaintiff’s firm will begin “venue shopping” for counties least affected by the cuts.

Below are several other examples of budget cuts which are likely to have an adverse impact on the courts in various states:

  • New Hampshire- As many as 11 more furlough days over the remainder of 2011.  Court staffs have been cut by 10% over the past year.
  • New Jersey- $25 million budget cuts, modernization of court houses state wide put on hold.
  • Minnesota- Hiring freeze in effect, judicial positions left vacant. Court hours were cut, and judicial districts consolidated.
  • Florida- Hiring freeze and layoffs of court employees. Pay cuts for judges and other elected officials.

We will continue to monitor budget cuts nationwide and follow up with a report once the practical impact of these cuts on civil litigation are known.
Continue Reading Financial Crisis Impacts Courtrooms Nationwide