It seems these days that a patent holder can’t catch a break. In the last two years, there has been a noticeable weakening of patent rights, presumably as a reaction to the perception that lower quality patents were issuing from the U.S. Patent & Trademark Office.
We have seen the judiciary give licensees an incentive to challenge the validity of their licensor’s patents ( MedImmune v. Genentech ). We have seen the judiciary declare that the patent holder’s express statutory right “to exclude others” may not always permit exclusion of others ( eBay v. Mercexchange ). We have seen the same judiciary attempt to make it harder to establish willful infringement ( In re Seagate Technology LLC ), and a likely endorsement of that change is apparently going to be adopted by Congress if the question of damages can ever be resolved in the pending Patent Law Reform Bills.
