The Exela case is interesting as it provides an unconventional approach in dealing with patents. It brings to light some of the issues with the current patent system and a possible need to rectify the situation.
Exela is a pharmaceutical entity that has a patent on injecting acetaminophen. What happened was the USPTO allowed the Cadence group to file a patent application past the intended deadline on the premise of unintentional delay. Later, the Exela was sued for their acetaminophen product and ended up suing the USPTO for improperly reviving the opportunity to file a patent late. Currently, the case is played out with Exela using the APA (Administrative Procedure Act) as part of their argument. However, USPTO argues that the six year statute of limitations makes the claim invalid.
This case puts the USPTO group under a lot fire and forces people to really look at our current patent system. As an extension of government, the USPTO is intended to ensure that patents are allocated to individuals and groups in a proper manner. In light of Exela, it becomes difficult to determine if the USPTO is something that should have the final say on patents. Relying on older laws and government, the USPTO may be making important decisions but is it for the benefit of the people or to maintain order? If this case falls to favor Exela, it would be a pivotal point since it would show the limitations of the USPTO to reinforce its policies. However, it is important for the USPTO to make these decisions with careful deliberation. While I am confident USPTO took a hard look before allowing the case revival, it begs to question whether court cases are necessary to get a third party feedback on these cases. Broadly speaking, the case is a debate between government and company interests. It comes down to whether the government interest or company interest is best for consumers and society. There is no villain in this situation since everyone has a role in the patent scene. Governments need to update some of these regulations to keep up with technology and companies need to ensure fairness and promote innovation rather than hinder it. Even if a group was even set up to watch over the USPTO, it is still the same scenario leading to one group with the final authority.
I am not sure of definite solutions. However, it would be necessary to have the USPTO update certain regulations that would help make the patent process not as difficult. While the companies need patents to keep business afloat, it may be difficult to argue in favor the company and finding fault with the U.S. regulatory group. This point does not mean the USPTO can do whatever they see fit. The organization should bear more transparency and be open in their decisions involving the companies. While it may take a long time before business and government work these issues outs, the decision of this case can be a step in the right direction.
References:
http://patentlyo.com/patent/2014/02/collateral-challenge-circuit.html
“In light of Exela, it becomes difficult to determine if the USPTO is something that should have the final say on patents.”
ReplyDeleteIt is unclear from your article (and from the reference) how the Exela case is putting the USPTO’s area of authority (“the final say on patents”) in question. Can you explain?
Certainly, many have called for new or different regulations, for a variety of reasons!
Addendum:
DeleteFor clarification,the USPTO authority is in question from the view of the Exela group. For Exela, the USPTO should uphold regulations and decisions that help to support companies such as Exela for their work. The questioning comes from the fact that such deadline extensions are rare.
Upon further research, it is found that this case has been under examination for some time. The USPTO is in question but the court as far back as 2011 since the judge did not wish to uphold some of the decisions since it favored Exela's "losses" from dealing with the contested patent infringement. It is an interesting point since some of the decisions made by the USPTO can be put under reexamination by third parties. It may suggest that these decisions are put under fire to benefit the third party groups that are pursuing the reexamination.
Reference:
http://patentlyo.com/patent/2012/08/suing-the-uspto-to-cancel-improperly-issued-patents.html