Will Fear Of Willful Infringement Hurt New Patent Peer Review System?
from the questions,-questions dept
There’s been a lot of talk about the US Patent Office’s decision to test a patent peer review system. Since there are so many complaints about patent examiners not knowing about important prior art, the idea is that actual experts in the space can weigh in on prior art and how “obvious” the idea is. There are some problems with the idea, however — not the least of which is that making sure the right experts are actually paying attention when certain patents come up is a big task, especially as the USPTO makes it increasingly difficult to follow patent applications. Add to that the fact that damages can be tripled if the court finds “willful infringement,” and a number of patent attorneys recommend their clients never actually look at patents — since it only puts them at greater risk. That has some worried that anyone who participates in the peer review simply opens themselves up to willful infringement charges at a later date. While we like the idea of having experts weigh in on patent validity, it’s never going to be useful if the system punishes people for doing so.