Preparing and prosecuting patents today is much different and more challenging than it was in the more pro-patent environment from the early-1980s to the mid-1990s. Those were the “golden years” for patentees, spurred on in large part by the creation of the Federal Circuit in the 1982—when claims meant what they said, wide-spread allegations of inequitable conduct were truly considered a plague on the patent system, and patentees’ rights and remedies were respected. But almost all members of the original Federal Circuit have departed. For better or for worse, a new era of patent law has been ushered in, one noticeably more harsh towards patentees and those in the trenches obtaining patents. Today, courts routinely construe claims more narrowly than their literal words would require, notwithstanding a patent office rule of giving the claims their broadest reasonable construction. Claimed inventions are being found obvious at an alarming, almost uncontrollable, rate. Challengers to patents allege inequitable conduct in virtually every case, driven to distort the complex procedures of patent prosecution by the end-goal of having a valid and infringed patent rendered unenforceable. Heard enough? Well, it gets worse. The risk of an injunction for patent infringement has been so substantially diminished since the Supreme Court’s 2007 e-Bay decision that patentees have lost negotiation leverage with alleged infringers. And even if the parties settle their dispute with a license agreement, the licensee has free reign, thanks to the Supreme Court’s Medimmune decision, to challenge the patent without having to breach the agreement.

These dramatic turn of events have left many litigators happy they litigate and left many patent prosecutors scratching their heads wondering what could be done in the face of such patent-negativity. What’s the answer? The answer is to ride out and meet the current challenges head on. Patent practitioners need not only to become familiar with the cases that are changing both the past and future landscape, they need to use their knowledge of the evolving law to sharpen their skills, develop new techniques, and adapt their practice accordingly.

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