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A proposal for simple patent reform (2 of 2) July 23, 2009

Posted by Brian Schar in General.

I received a notice today that one of my employer’s trademarks is now incontestable.  Upon placing that postcard in the file, it occured to me that there’s no reason that patents shouldn’t also become incontestable after a certain duration.

One of the ideas of so-called patent reform is to push post-issue review of patents to the USPTO, and to involve third parties to a greater degree.  If such changes are made to the law, it would make sense to draw a line in the sand after which most allegations of invalidity would be prohibited.  For example, inequitable conduct challenges would be prohibited after the patent becomes incontestable, wiping out that “plague” of patent litigation for mature patents.  Of course, just as with trademarks, allegations of outright fraud in the procurement of the patent would still be allowable.  The fact that a patent would become incontestable after a certain time also would incentivize potential defendants to challenge a patent in an inter partes USPTO process before the incontestability date, driving parties to use the USPTO instead of the courts to handle certain validity challenges.

Arbitrarily, the payment deadline of the last maintenance fee for a patent could be declared the date at which that patent becomes incontestable.  That would give challengers over 10 years to dispute the scope and validity of a patent, more than enough time.  From a statute-of-limitations perspective, the idea of incontestability is also a good one, and this date may even be too late from that perspective.  Recollections by inventors of actions they took during patent prosecution grow dimmer every year, and 11 years out may be as long as one can realistically expect an inventor to recall the arcana of patent prosecution. 

This patent reform wouldn’t cost a cent.  In fact, it would save litigants money by foreclosing certain arguments in litigation, and would save judicial resources by knocking out the days of trial time devoted to cobbling together an inequitable conduct defense out of the minor errors and inevitable glitches in the patent prosecution process.


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