The Catholic University Law Review’s
annual spring symposium showcased an academic program as deep and broad as the subject it addressed. Seventeen invited speakers, serving on three panels, spent nearly six hours sharing their points of view on whether a massive overhaul to American patent law passed in 2011 suffices to deal with the surge of patent litigation currently swamping courts.
The March 27 program, “Patent Litigation After the America Invents Act,”
(AIA) provided a platform for academics, practitioners, judges, and expert advocates to debate whether more than a dozen Congressional bills that have been introduced since 2013 to address the patent litigation “crisis” will help or hurt if they are passed.
The Law Review defined the current situation:
“This year’s Catholic University Law Review symposium considers the state of our patent litigation system since the AIA was enacted, the current reform efforts, and what the future may hold for patent litigants. The symposium will tackle numerous issues, such as implementation of the AIA, parallel litigation in multiple venues, the need for further patent reform, and which branch of government should be responsible for patent reform.”
Following welcome remarks from David Steenburg, Editor-in-Chief, Catholic University Law Review, (Vol. 64); Daniel F. Attridge, Dean and Knights of Columbus Professor of Law, and Megan La Belle, Associate Professor, Columbus School of Law; the morning’s keynote speaker had the floor.
The Hon. Kathleen M. O’Malley, Circuit Judge, U.S. Court of Appeals for the Federal Circuit, said her court—which hears patent cases at the federal appeals court level—sits 12 months a year to handle the ever-rising volume of work.
“The patent litigation business is booming, we have people who don’t practice patents enforcing them,” the judge observed. She said the increase in the number and complexity of patent lawsuits “stretches the resources of all of the different forums” designed to handle them, and further, “is stressing those who face the litigation.”
A number of CUA Law alumni were sprinkled through the program, including brothers Thomas and Robert Stoll.
Speaking on the morning panel, Thomas L. Stoll, 1996, an IP policy specialist with The Boeing Company, noted that so-called patent “trolls,” the pejorative term for patent assertion entities who file frivolous patent suits in order to extract unwarranted settlements, succeed in part because the bewildered targets of their surprise legal actions don’t fully understand the supposed charges against them. Stoll indicate support for a bill before Congress that would mandate the use of claim charts “so defendants could make an educated guess about whether to pay, or whether the charges are bogus.”
His brother, Robert Stoll, 1985, now a partner at Drinker Biddle & Reath LLP, served as the afternoon’s keynote speaker. Stoll retired from the USPTO as Commissioner for Patents at the end of 2011 after a 34-year government career. He was instrumental in the passage of the America Invents Act. Stoll said that while attacking “troll” behavior is easy, many companies engage is similar behavior, even if their intent in doing so is different.
“I’m finding it hard to say what a troll is,” Stoll said, adding “we are in a very risky time on patent issues.”
If a single comment could sum up the vast amount of territory covered by symposium experts, it might be a simple insight offered by Dr. Lawrence M. Sung, a partner at Wiley Rein LLP and lecturer for CUA Law. Remarking upon how fast patent law and litigation is changing, Sum said even experts must strive to stay up with the times. “We are all students of patent law now,” he said.
March 27 Program
Panel 1: Patent Litigation in the Courts
Moderator: Lawrence M. Sung, Ph.D, Partner, Wiley Rein LLP, Lecturer, Columbus School of Law
The Honorable Catherine C. Blake, Chief Judge, U.S. District Court for the District of Maryland
Shubha Ghosh, Professor of Law, University Wisconsin Law School
Doris Johnson Hines, Partner, Finnegan, Henderson, Farabow, Garrett & Dunner LLP
Thomas L. Stoll ’96, IP Policy Specialist, Intellectual Property Management, the Boeing Company
Lunch Keynote Speaker
Robert L. Stoll ’85, Partner, Drinker Biddle & Reath LLP
Panel 2: Patent Litigation at the PTO
Moderator: Jason M. Nolan, Ph.D. ’12, Associate, Rothwell, Figg, Ernst & Manbeck P.C.
The Honorable Jennifer Bisk, Administrative Patent Judge, U.S. Patent & Trademark Office
Gregory Dolin, M.D., Associate Professor of Law, University of Baltimore School of Law
Charles Duan, Director of the Patent Reform Project, Public Knowledge
Robert Green Sterne, Partner, Sterne, Kessler, Goldstein & Fox PLLC
Panel 3: Patent Litigation at the ITC
Moderator: R. Whitney Winston, Investigative Attorney, U.S. International Trade Commission
The Honorable Thomas B. Pender, Administrative Law Judge, U.S. International Trade Commission
Stephen R. Smith, Partner, Cooley, LLP
Lauren A. Degnan, Principal, Fish & Richardson P.C.
Lynn I. Levine, Investigative Attorney, U.S. International Trade Commission
Jennifer Bruneau, Editor-in-Chief, Catholic University Law Review, Vol. 65