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69 Drake L. Rev. 1 (2021)
From a Strong Property Right to a Fickle Government Franchise: The Transformation of the U.S. Patent System in 15 Years

handle is hein.journals/drklr69 and id is 15 raw text is: FROM A STRONG PROPERTY RIGHT TO A FICKLE GOVERNMENT FRANCHISE: THE TRANSFORMATION OF THE U.S. PATENT SYSTEM IN 15 YEARS Hon. Paul R. Michel & Matthew J. Dowd* ABSTRACr Congress created the Federal Circuit almost 40 years ago. When Congress established the Federal Circuit, Congress wanted it to improve the state of affairs on patent law. For many years, through the 1980s and 1990s, the Federal Circuit achieved Congress's goal and ushered in an era of confidence in U.S. patents. The ultimate goal was to improve the nation's innovation certainty. Winds of change began to blow in the mid-2000s. The U.S. Supreme Court became re-interested in substantive patent law. From 2006 to 2008, the Supreme Court issued a string of decisions weakening the patent system. One decision was eBay Inc. v. MercExchange, L.L.C., which rejected the Federal Circuit's approach to issuing injunctions once a patent was found valid and infringed. Additionally, a concerted lobbying effort got underway to enact so-called patent reform-much of which was supported by major Silicon Valley corporations. The Supreme Court then entered the emerging fray of patent-eligibility and issued four decisions on patent eligibility that created a novel two-part, formalistic test (the Alice-Mayo test) that had no connection to the statutory categories set forth in § 101. Along the way, and in response to the powerful lobbying efforts of Silicon Valley behemoths and large financial institutions, Congress passed the America Invents Act (AIA). The most significant reworking of the Patent Act in 60 years, the AIA radically altered the way patent rights are adjudicated and enforced-and mostly to the detriment of patent owners. The Patent Trial and Appeal Board (PTAB) became the largest body of administrative adjudicators deciding the validity of patent rights. Additionally, the Supreme Court completely redefined a * Matthew J. Dowd is a partner and founder of Dowd Scheffel, PLLC. He is a graduate of the George Washington University Law School and of the College of William and Mary. He is a former clerk for Chief Judge Paul R. Michel (ret.) of the U.S. Court of Appeals for the Federal Circuit. The Authors would like to give special thanks to John Whealan, Gregory Dolin, Dmitry Karshtedt, Robert Scheffel, William Jenks, Jonathan Stroud, and the many other colleagues who have made the practice of patent law so engaging. Our discussions over the years have contributed and influenced thought that have ended up in this Article. Thank you as well to Kisa Motiwala and Elliot Gee for their assistance in reviewing this Article. 1

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