According to the article, a significant fraction of patent lawsuits were being deliberately filed by competitors to challenge the validity of patents that had just been issued. The reason to do this was so that you could choose a venue that was patent unfriendly and therefore gave you better odds of overturning the patent.
Consider the fact that these lawsuits were filed preemptively (they had to be filed before the patent was used to sue you, else you would not get to choose venue), and that they would be filed on the weakest possible patents. One would expect the patent holder to lose a very large portion of these.
I would suspect that a lot of the 80% of wins right after CAFC was due to these cases reaching the CAFC, and it asserting its power over lower courts.
The long-term slide since then is undoubtably due to people pushing the envelope as fast and hard as they can on how bad patents can be, and how broadly patent law can be filed in novel areas (ie ones that Congress never meant it to be applied in).
There were obvious issues in the pre-CAFC era, but I'd prefer those issues over the current status quo.
Comments
Your assumption #2 is false.
According to the article, a significant fraction of patent lawsuits were being deliberately filed by competitors to challenge the validity of patents that had just been issued. The reason to do this was so that you could choose a venue that was patent unfriendly and therefore gave you better odds of overturning the patent.
Consider the fact that these lawsuits were filed preemptively (they had to be filed before the patent was used to sue you, else you would not get to choose venue), and that they would be filed on the weakest possible patents. One would expect the patent holder to lose a very large portion of these.
I would suspect that a lot of the 80% of wins right after CAFC was due to these cases reaching the CAFC, and it asserting its power over lower courts.
The long-term slide since then is undoubtably due to people pushing the envelope as fast and hard as they can on how bad patents can be, and how broadly patent law can be filed in novel areas (ie ones that Congress never meant it to be applied in).
There were obvious issues in the pre-CAFC era, but I'd prefer those issues over the current status quo.