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bearsfan23 wrote:Oh noes

gk101 wrote:I don't see why the IP litigation groups aren't just going to start taking over IPR work. It may become harder for non-science background folks to get into IP Lit, but it wasn't really an easy option before. Also, the first few IPR decisions are just getting to the Federal Circuit on appeal, so there is a lot of unsettled law. I think a majority of the IPRs have a concurrent district court litigation pending (usually stayed until the IPR proceedings are completed) and clients aren't willing to rely solely on IPRs. I wouldn't buy all the doom and gloom surrounding IP lit just yet.

As for Alice killing software/business method patents, meh. A lot of the same things were said after Bilski and it didn't turn out to as big a deal as many predicted at the time.

Biglaw_Associate_V20 wrote:

gk101 wrote:I don't see why the IP litigation groups aren't just going to start taking over IPR work. It may become harder for non-science background folks to get into IP Lit, but it wasn't really an easy option before. Also, the first few IPR decisions are just getting to the Federal Circuit on appeal, so there is a lot of unsettled law. I think a majority of the IPRs have a concurrent district court litigation pending (usually stayed until the IPR proceedings are completed) and clients aren't willing to rely solely on IPRs. I wouldn't buy all the doom and gloom surrounding IP lit just yet.

As for Alice killing software/business method patents, meh. A lot of the same things were said after Bilski and it didn't turn out to as big a deal as many predicted at the time.

After a while, companies are going to stop paying for large quantities of patents and focus on greater quality. Companies will switch to prosecuting patents with a lot of disclosure, concrete ties to machines and clearer claims (in order to survive IPR, Alice and indefiniteness challenges). Hiring mass-producing patent firm like Knobbe to crank out hundreds of overly broad patents will be completely worthless in light of Alice and the new indefiniteness standards. The IPR work will eventually slow down as fewer patents are acquired and asserted by companies. In short, it may take a while, but there will be a definite slowdown across all patent-related fields unless the legal landscape changes unexpectedly. Obviously, the litigators will feel it first, since it makes no sense to sue people on patents that are almost certainly going to be invalidated.

The difference with Alice is that we're already seeing software/business method patents getting annihilated using Alice's Section 101 analysis. Less than 5% of these kinds of patents are surviving Alice challenges, which is unprecedented.

fats provolone wrote:welp

Stevoman wrote:There's still going to be plenty of patent work, it's just going to be more specialized than ever as the work moves to PGR type stuff. Hard science/engineering attorneys will continue doing just fine.

The only people who will be hurt by this are the soft IP guys from multi-service sweatshops who got thrown at the field when it was hot a few years ago. Which I'm guessing is OP judging by his name.

gk101 wrote:

Biglaw_Associate_V20 wrote:

gk101 wrote:I don't see why the IP litigation groups aren't just going to start taking over IPR work. It may become harder for non-science background folks to get into IP Lit, but it wasn't really an easy option before. Also, the first few IPR decisions are just getting to the Federal Circuit on appeal, so there is a lot of unsettled law. I think a majority of the IPRs have a concurrent district court litigation pending (usually stayed until the IPR proceedings are completed) and clients aren't willing to rely solely on IPRs. I wouldn't buy all the doom and gloom surrounding IP lit just yet.

As for Alice killing software/business method patents, meh. A lot of the same things were said after Bilski and it didn't turn out to as big a deal as many predicted at the time.

After a while, companies are going to stop paying for large quantities of patents and focus on greater quality. Companies will switch to prosecuting patents with a lot of disclosure, concrete ties to machines and clearer claims (in order to survive IPR, Alice and indefiniteness challenges). Hiring mass-producing patent firm like Knobbe to crank out hundreds of overly broad patents will be completely worthless in light of Alice and the new indefiniteness standards. The IPR work will eventually slow down as fewer patents are acquired and asserted by companies. In short, it may take a while, but there will be a definite slowdown across all patent-related fields unless the legal landscape changes unexpectedly. Obviously, the litigators will feel it first, since it makes no sense to sue people on patents that are almost certainly going to be invalidated.

The difference with Alice is that we're already seeing software/business method patents getting annihilated using Alice's Section 101 analysis. Less than 5% of these kinds of patents are surviving Alice challenges, which is unprecedented.

Most companies already use different firms and programs like fast-track applications for prosecuting patents that have a lot of disclosure, concrete ties to machines and clearer claims. The mass-produced broad patents serve a different role in an IP portfolio. IPRs aren't exactly the cheapest or the most efficient way to invalidate a large no. of claims/patents. The cost of litigating a large number of claims in district court vs cost of instituting multiple IPRs to adequately address all the claims might end up being very similar.

I am sure there will be some slowdown in litigation (that's kinda the point of all the lobbying efforts and upcoming legislation) but again the "end of patent law as we know it" talk seems premature. There hasn't been such a massive shift in patent law landscape that companies will start abandoning a significant part of their portfolios at least in the foreseeable future

As for Alice, I agree that the immediate aftermath has been unprecedented. But its not like business method patents are categorically non-patentable. It might take some time but I am sure prosecutors will adapt to it and soon litigation folks will have more stuff to fight about. Companies like Mastercard, AMEX etc that have significant IP portfolios in the financial transactions/business methods area are not going to abandon it because of Alice alone

Litigation in general is slowing down across the industry and patent won't be an exception to that. On the other hand, I don't think patent lit will be uniquely worse off than others.

TLDR:

fats provolone wrote:welp

Biglaw_Associate_V20 wrote:I don't understand why you expect prosecution to remain largely the same when litigation is becoming more difficult. The only value inherent in a patent is the ability to sue someone for infringement. Take away that value, and the patent is worthless. Why would companies continue prosecuting worthless patents?

. . .

As I said, the overwhelmingly vast majority of business method patents are being invalidated and new applications on the same are being rejected in the patent office. There are entire art units devoted to business method patents that are denying something like 97% of applications, whereas the number was closer to 60% pre-Alice.

Leo wrote:I know a 1L at CCN who left engineering to pursue a career in patent law. He/she also secured a 1L SA at a V100 that is top 5 in IP. Should he/she be worried?

Leo wrote:I know a 1L at CCN who left engineering to pursue a career in patent law. He/she also secured a 1L SA at a V100 that is top 5 in IP. Should he/she be worried?

kcdc1 wrote:

Biglaw_Associate_V20 wrote:I don't understand why you expect prosecution to remain largely the same when litigation is becoming more difficult. The only value inherent in a patent is the ability to sue someone for infringement. Take away that value, and the patent is worthless. Why would companies continue prosecuting worthless patents?

. . .

As I said, the overwhelmingly vast majority of business method patents are being invalidated and new applications on the same are being rejected in the patent office. There are entire art units devoted to business method patents that are denying something like 97% of applications, whereas the number was closer to 60% pre-Alice.

I think you're conflating the Alice issue with procedural reform (fee shifting, complaint standards, etc).

Alice will affect both lit and prosecution. Software/business methods are of suspect validity, which means companies will be have less incentive to seek new patents in those arts and will be less likely to assert the patents that they already have.

The procedural reforms are designed to hit litigation, and it stands to reason that they will succeed in this regard to some degree. But the tie to prosecution is much more tenuous.

Say Congress enacts mandatory fee shifting so that the winner automatically recovers his own legal fees. Now patentees are less likely to assert patents of questionable validity because they risk being on the hook for both sides' legal fees if they lose. Thus, questionably valid patents are more difficult to monetize and are of lesser value. It's possible that companies would recognize this trend and will cut prosecution budgets because so many of the patents that issue are weak.

But there are also countervailing factors. When the winner recovers legal fees, stronger patents become cheaper to assert, and therefore become more valuable. So companies might want to increase their prosecution budgets to get higher quality patents. Or they might simply seek more patents so that they have more options from which to pick out the strongest cases.

And of course patents can still be used outside of direct litigation. You can still use a weak patent to extract a licensing fee -- the procedural shift changes the parties' leverage, but the prospective licensee is still risk-conscious. And you can still use patents at the portfolio-level for the same strategic purposes that you could pre-reform.

In short, I'll buy that procedural reform could reduce litigation, but it's not at all clear to me that it will cut down on prosecution. It would reasonable to predict a shifting emphasis from quantity to quality, but a net reduction in investment doesn't seem to follow.

fats provolone wrote:in all seriousness i'm not too worried about it. i only have hundreds of thousands of dollars in debt so i can be pretty flexible in terms of jobs

gk101 wrote:

Leo wrote:I know a 1L at CCN who left engineering to pursue a career in patent law. He/she also secured a 1L SA at a V100 that is top 5 in IP. Should he/she be worried?

yes leaving engineering to become a lawyer shows very poor judgment

Biglaw_Associate_V20 wrote:
I don't understand why you expect prosecution to remain largely the same when litigation is becoming more difficult. The only value inherent in a patent is the ability to sue someone for infringement. Take away that value, and the patent is worthless. Why would companies continue prosecuting worthless patents?

As I said, the overwhelmingly vast majority of business method patents are being invalidated and new applications on the same are being rejected in the patent office. There are entire art units devoted to business method patents that are denying something like 97% of applications, whereas the number was closer to 60% pre-Alice.

Patent lit is significantly worse off than other kinds of litigation because it doesn't translate well to other types of litigation if you want to switch. A lot of litigation job postings specifically say that they do NOT want applications from patent litigators because a lot of the skills you develop as a patent litigator are 100% useless for other kinds of litigation. Also, there are way too many patent litigators right now. Almost every firm is overstaffed.