Amidst the commotion of the recently-enacted America Invents Act (which resulted in the most substantial overhaul of our patent laws since the Patent Act of 1952), and the flurry of patent legislation directed to the problem of patent troll litigation—issues that have all but consumed patent litigators, judges, agencies, Congress, and even the White House in recent months—there is lurking in the background the beginnings of a change that may have far greater consequences for our patent system. This change began in the garages of hobbyists, and is now slowly, but steadily, creeping into businesses and homes around the world. We may now be at the precipice of a technological shift with far greater reach than the procedural and judicial process changes that are today being explored in Congress; rather, these changes may have fundamental impacts not only on patent enforcement in district courts, but also on patent prosecution, patent licensing and counseling, and on the very foundations of our patent system.
The development of technology has always pushed the boundaries of the law, often forcing the application of existing laws to scenarios never before contem¬plated. The proliferation of the personal computer brought on such a period in intellectual property law (raising questions regarding the patent and copyright eligi¬bility of software inventions); the internet extended that period of change in even more dramatic fashion.
Originally published in Intellectual Property Today, January 2014.
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