Patent practitioners returning to
work after the holidays are now looking ahead to what 2015 will
bring. Their sense of good will and cheer built up over the
holidays may soon disappear: Erich Spangenberg, owner of IP
Nav, has depressing news for them.
People of a more pro-patent bent
were not happy in 2014, with inter partes review becoming an
increasingly popular threat to the validity of patents and the
Supreme Court’s Alice decision casting
any patent seen to be directed to an abstract idea in
a blog post detailing his outlook for 2015, Spangenberg
said he does not think "we’re at
the low tide mark and things will improve in the patent market
He made five predictions for the
1. Patent reform will be
enacted and include fee shifting.
2. Inter partes review (IPR)
filings will increase.
3. The number of patent lawsuit
filings will continue to decline.
4. Significant GAAP write-downs
5. Major cuts are coming at big
law firms focused on IP litigation.
Reform a sure thing?
With Republicans now
controlling Congress, the expectation is building that patent
reform will pass this year after stalling in 2014. Spangenberg
advises patent practitioners to "accept it and learn to deal
He said: "The only question in
my mind is whether patent reform will get wrapped into broader
tort reform. If it does, it will slow things down. My
expectation is that until there is a change in the Oval Office,
Congress will not tie patent reform and tort reform
"On the legislative front, look
for new patent legislation to be signed into law in the first
half of 2015. It came close in 2014 – it will happen
This will be warmly received by
those advocating for reform. Others have suggested that
it would be a good idea to wait to see the impact of the
last reforms and the Supreme Court’s recent
decisions play out first. "It is naive to expect that reason,
reliable data, potential harm, and unintended consequences will
slow down reform," cautioned Spangenberg.
The House of Representatives
will lead the way and the Senate will follow with a more
limited bill, predicted Spangenberg. He said the main elements
of the bill will likely include: mandatory or presumptive fee
shifting, more detailed complaint requirements, "transparency"
on ownership and financial interests, and enhanced IPR
"While I’m fine
with the concept of these changes, the bill will undoubtedly be
poorly drafted and simply lead to more disputes," said
He said that judicial "patent
reform" will likely continue as well. "The Supreme Court
already has a couple of cases due for decision and at least the
one (on district court claim construction) has the potential to
lead to further lack of clarity in patent litigation," he
A gloomy prognosis was given
for business method patents as well. "More significantly, I
believe we’re only a single vote change away on
the Supreme Court and Federal Circuit from effectively
eliminating business method patents. A resignation and a new
appointment at either court, or a change of heart by one judge,
could have massive implications for the patent market," he
the blog post is well worth a read for
Spangenberg’s commentary on his other four
predictions, including why IPR will increase "but not for the
reason you think".