Still Worth the Effort to get a Patent?
As global competition increases, the US courts and the Congress are virtually eliminating the single remaining Safe Harbor protection for inventors- the patent. Two key factors. In this article, http://www.ipwatchdog.com/2014/12/10/toxic-asset-the-gradual-demise-of-the-american-patent/id=52571/ the author describes the rulings in 2014 from the Supreme Court and the Court of Appeals. The Supreme Court invalidated 5 cases reviewed. From June-December, federal courts have invalidated 15 out of 19 cases reviewed.
The second factor comes out of the American Invent Act which created the Patent Trial & Appeals Board in the USPTO. In what can only be described as bizzare, an issued patent can be declared invaild by the same organization that declared it valid in the first place. The PTAB invalidated 77% of the cases it reviewed. And, 27 states are making it harder for a patent owner to assert rights againgst an infringer.
More profoundly, this sends a cold chill through inventors and research labs. Why spend large amounts of time and money to invent the better mousetrap, file for a patent(s), have on issued only to have it declared invalid opening the door to cheaper foreign competition? Where does the Constitutional protection for patents stand? How can one have faith in a patent examiner?
TThe author stipulates that US Patents have, in effect, become toxic assets like a subprime mortgage.
So, when you're reviewing the new product launch with the CEO and he asks, " since we've spent hundreds of millions of dollars on this product, how are you going to protect it we can get and return on that investment," you answer... Trade secret...?