Strange Days. Our Surreal Surroundings.

Back Through the Looking Glass? Federal Circuit Recognizes Underlying Facts May Exist At Summary Judgment and Pleadings Stages

Asserting patent rights is a surreal endeavor these days. Two weeks ago, our team at Tabet DiVito & Rothstein was celebrating a key win for client Thales Visionix at the Federal Circuit. That same week, Andrei Iancu was confirmed as our new Director of the USPTO. (Welcome to the party, Andrei.)

Then the Federal Circuit issued its ruling in Berkheimer v. HP, followed by its decision in Aatrix Software v. Green Shades. Glimmers of hope?

Maybe. Survival rates at the PTAB are improving. But the cost and time necessary for a patentee to claw their way back to the district court — that is, just to get back to Square One — is too much for many. I’m not the only one who believes it’s having a negative effect on our nation’s innovation ecosystem. Last week, many colleagues who fight in the dust of the patent arena shared ideas and insights at the 2018 Leahy Institute of Advanced Patent Studies Conference (where the sunrises truly are spectacular, btw, and I also took a moment to catch this lovely afternoon shot!).

This past month, with our year still newly begun, I thought to reach out to my friends and colleagues, clients and other contacts, as I considered what the year ahead might bring. I greatly appreciate the many warm responses I received.

One response came from Gene Quinn, a passionate voice in defense of innovators who shares my concerns about what’s been happening to innovative companies and entrepreneurs since passage of AIA and the Supreme Court’s Alice decision. Gene kindly invited me to adapt my email to him as a post for Thanks to Gene for the opportunity to share it.

Strange days. And still waiting for the sun.



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