The technology at issue is a subcutaneous cosmetic penile implant, a silicone sleeve placed between the skin and 'Buck's fascia' to enhance girth and length.
Congress set the patent term at twenty years from the earliest effective filing date. 35 U.S.C. § 154(a)(2) (not counting provisional or foreign national filing). But that statutory baseline is just the starting point. But, the actual term is shaped by a series of prosecution decisions, USPTO delays, terminal disclaimers, and patent family structure.
The enormity of the problem cannot be understated. A Federal Circuit panel recently reached a final decision that, if not overturned, will destroy the U.S. patent system, and will ironically impact the most valuable patents disproportionately. The ruling was simple and continues a disturbing and inexplicable trend-a patent issued after more than six years in prosecution is presumed unenforceable as the result of prosecution laches.
The Board's Trial Practice Guide explains that 'one petition should be sufficient to challenge the claims of a patent in most situations' and 'multiple petitions by a petitioner are not necessary in the vast majority of cases.'
The case centers on the "Martin" reference, a patent application covering LED technology that was filed on April 16, 2003 and published on October 21, 2004. Martin was later abandoned and never became a patent. Lynk Labs' '400 patent claims a priority date of February 25, 2004, placing it squarely in the gap between Martin's filing and publication dates. Samsung successfully used Martin to challenge claims of the '400 patent as obvious in IPR.
In an ideal world, issued patents would not contain errors. In reality, patent drafting is tedious and time-consuming work and perfection is not an attainable goal. The patent industry seems to be steadily getting better, though. In a recent study, we uncovered an 11.24% decrease in errors per patent over the past four years. We observed this decrease by reviewing every patent issued by the U.S. Patent and Trademark Office (USPTO) since 2020 - nearly 1.4 million patents.
This week on IPWatchdog Unleashed, I speak with Todd Walters, who is Chair of the Patent Office Litigation practice group at Buchanan. We explore the current state of Patent Trial and Appeal Board (PTAB) practice and the growing tension among stakeholders as policy changes continue to reshape post-grant proceedings. We reflect on the intensity of opinion from patent owners and petitioners and discuss the high financial stakes and strategic importance of America Invents Act (AIA) proceedings.
