In 1950, patent law was an obscure and secluded legal area. Patent attorneys were mostly nerds, (engineers and scientists who somehow found their way into law school). Patent lawyers were not popular with the general legal community. Patent lawyers in private practice worked only with other patent attorneys.
A remarkable change in attitude was brought about by changes to laws, courts and treaties. In 1978, when the U.S. signed the Patent Cooperation Treaty (PCT), the filing of international patent applications was simplified. The Court of Appeals for the Federal Circuit was established in 1982 to ensure uniformity of U.S. Patent Law. This appellate court would hear every appeal of federal district court decisions. The CAFC’s decisions at first appeared to be in favor of patents, especially when they reiterated the meaning behind our patent statute, which states: “A Patent shall be Presumed Valid.” 35 U.S.C. 282(a). Congress also passed other incremental revisions to the patent laws, including, for example, different ways to extend a patent term. These were generally viewed as favorable to patents.
The biggest news was that some patent owners received infringement damages awards exceeding the $1 million threshold. Patent law allows for attorney’s fee recovery and triple damages if the infringement is found to be willful. Trial attorneys (non patent attorneys) realised that they can try patent cases. The case was technically complex, but the patent lawyers helped them sort out patent law principles.
Patent law departments were soon created by “large” law firms, such as those that had 75 or more lawyers at the time. They did this to attract and support clients with lucrative patent litigation cases. Patent lawyers were considered geeky and the integration of them into such law firms was not always successful. The lure of large litigation legal fees was too strong to ignore. After this was sorted, and multimillion dollar patent infringement verdicts, settlements, and awards started to happen with regularity, becoming a patent attorney became fashionable. Other people envied us.
Around the turn of this century, some patent infringement settlements and verdicts were huge. They reached into the hundreds of millions. Patent litigation has huge benefits for patent owners, and their lawyers through massive legal fees.
A similar trend has been observed in the area of trade secrets, which is another form of intellectual property. In recent years, the amount of damages awarded for misappropriation of trade secrets has risen dramatically. Some awards have reached hundreds of millions of dollar. In our opinion, several factors contribute to the increased emphasis on trade secrets.
In 2016, Congress passed the Defend Trade Secrets Act, which created a federal cause for action in cases of misappropriation of trade secrets. The DTSA is similar to state trade secret laws but also covers conduct outside of the U.S. if the act was committed here. This allows for higher damages awards.
The Supreme Court has recently ruled that certain concepts are not “patent-eligible” subject matter. However, information about these concepts (like gene isolation techniques and business methods) may still be valuable and protected as trade secrets.
The current trend of workforce mobility and remote working makes it more difficult for an organization’s trade secrets to be protected. The theft of trade secrets by former employees is a common cause for misappropriation.
Bottom Line: Information (whether or not it is patentable) can still be valuable.
The article Million$ in damages awarded to $$$$$ for IP damage$ award$ first appeared on Attorney at Law Magazine.