Top 3 Questions 2018 Will Answer For IP Lawyers

What will happen to patent, copyright, and trademark law in 2018?

New year, new opportunity for various and sundry prognosticators to offer their predictions for the upcoming year. While the appeal of drafting a column along those lines is not lost on me, rather than offer my predictions for the IP ecosystem in 2018, I’ll try something else. Instead, I’ll identify the three questions I am most looking forward to having answered in the upcoming year. We are long past the point where anyone with any knowledge of the global economy can argue that IP issues are not important considerations for countries hoping to maintain (or leapfrog higher, for that matter) their positions on the global GDP charts. At the same time, we have yet to truly learn whether the IP system in the world’s most important IP market, the US — for now, as China continues to plow ahead in an effort to overtake us — is going to shift back towards a more robust, pro-IP owner stance. On that front, patent owners remain the most beleaguered market participants, even as copyright, trademark, and trade secret holders have seen some positive developments in their favor over the past year or so.

Accordingly, it is no surprise that I feel that it is in the area of patents that the most compelling possible answers will be found in 2018. At the top of the list of patent owner questions right now is surely the pending Supreme Court Oil States decision on the constitutionality of the hotly debated patent review proceedings instituted under the America Invents Act (“AIA”). No matter which way the Supreme Court rules, we are going to learn the answer to perhaps the most salient question presented by Oil States: Now that the AIA is the law, are existing and future patent owners on notice that the patents they hold can be revoked at any time in a quasi-judicial proceeding by the very same agency (USPTO) that granted them those patents in the first place? Or is there still some limitation on the ability of an administrative agency like the USPTO to perform (usurp?) what had traditionally been judicial functions in the realm of determining patent validity? Again, it doesn’t matter what we each may think the right answer is. But I am sure excited to hear what the Supreme Court has to say on the issue.

After Oil States, which has the potential to most immediately shift patent practice overnight, I think the next most pressing IP question for 2018 centers on whether or not we will finally see express political support for IP owners coming from President Trump — or at least another high-ranking executive branch official. While the constant swirl of “news” from and about the current administration can be dizzying, there was an expectation in some quarters that having a president who personally derives significant wealth from his personal IP would result in both immediate pro-IP owner changes in the USPTO and executive proclamations regarding pro-IP regulation activity. That has not yet occurred on a grand scale, even with a president who has licensed out his surname and made significant revenue on products from ties to wine, on top of his real estate projects.

Yes, the nomination of Andrei Iancu to lead the USPTO is expected to result in a more pro-IP holder agency, but any changes could take some time to develop. In contrast, some kind of pro-IP statement by Trump or one of his key Cabinet members would have immediate impact, if only to signal that there is a recognition that perhaps the pendulum has shifted too far in the direction of weak domestic IP rights — particularly in the patent space. One wild card to watch out for may come on the copyright/trademark side, with the increased importance of streamed entertainment content, as evidenced by the recent announcements by the likes of Disney that we can expect more streaming providers to launch in an attempt to disrupt the Netflix/Amazon/Hulu troika. As providers become increasingly motivated to identify and promote new content, it will be interesting to see whether they push for increased IP protection on existing content, or move more towards a Google-type free-for-all approach to IP rights — in the interests of benefiting the consumer, of course.

Finally, once the current administration’s domestic agenda fills out, we can expect to see a renewed interest in the US renegotiating the “bad” trade deals that have allegedly disenfranchised American workers. With globalization proceeding apace, and companies increasingly looking at implementing global IP strategies, we should start to see industries line up on one side or the other with respect to trade deal negotiations. In particular, it is easy to see the pharmaceutical industry eager to protect its ongoing ability to charge American consumers much more for the same drugs that are available overseas for less. Likewise, domestic industries will be keen to preserve their ability to keep out foreign knockoffs. How IP issues are dealt with in any trade negotiations will be interesting to see as 2018 progresses. Will IP issues be an afterthought, or key terms to any deal? Ultimately, there are a lot of open questions for IP owners and practitioners. It’s guaranteed that we will get answers to some of those questions in 2018 — and that those answers will lead to more questions for us to ponder heading into 2019.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.


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Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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