Important Patent Developments from 2022

Dec 30

Whether you are an inventor, business owner, or patent attorney, there were developments in the patent world continuously throughout 2022. It was easy to get lost in the updates that happened and how they might affect the patent landscape. Below are some of the most important developments from the past year and what they could mean going forward.

Supreme Court Refuses to take American Axle

The Supreme Court declined to take up the American Axle case this year, a case which many patent practitioners were hoping would provide clarity on patent eligibility. Ever since the Supreme Court decisions in Mayo and Alice, there has been ambiguity on what is patent eligible, what is not eligible, and how to draft applications to make sure the Patent Office views your application as eligible. There was hope that with American Axle the Supreme Court would clarify their previous decisions and resolve the confusion and ambiguity around eligibility. There is another patent case that the Supreme Court is taking up in the next year but, for now, inventors and patent practitioners are left with questions of whether their invention and application will be eligible, and must rely on experience. Time will tell if Congress or the Supreme Court will provide a new reading of amendment of Section 101 and eligibility rules.

“The World Trade Organization (WTO) asked for a waiver of certain patent protections related to COVID in 2021 to try and quickly address the issue on a global scale. The unintended consequences of that waiver began to arrive this year.”

Kathi Vidal is named USPTO Director

When there is a change in the presidential administration, there is the chance for a new Director at the USPTO, and this year finally brought us the confirmation of Kathi Vidal to the post after a lengthy confirmation process. Director Vidal has already become popular for the decisions she has made regarding outreach and inclusion. Vidal started numerous programs to encourage not only innovation but also patent filings by women and minorities, helping to demonstrate that patents and the USPTO are a place for all to protect their ideas. Director Vidal has also already been at work engaging both the US and international patent communities in identifying and addressing systemic changes. Vidal’s leadership has been impressive to start, and it will be interesting to see her continue to promote innovation in the coming year.

The Fight Around COVID Patents Continues

When the COVID outbreak began in 2020, the pharmaceutical industry leaned heavily on the patent system to know its innovations would be protected as it tried to address the pandemic as quickly as possible. While the pandemic is mostly contained in the United States at this point, it still rages in some developing countries. The World Trade Organization (WTO) asked for a waiver of certain patent protections related to COVID in 2021 to try and quickly address the issue on a global scale. The unintended consequences of that waiver began to arrive this year. While many people around the world would like to stem the tide of COVID, the pharmaceutical companies spent considerable amounts of time and money to create vaccines and therapeutics as quickly as they did. The WTO asked for a waiver of protections for five years, and got the US government's support for this. The more the global pandemic comes under control, the further the American companies forgoing some of their hard-earned patent protections will become upset or resent the decision. The COVID waivers will continue to be a story in the new year as the world continues to address COVID’s new and existing variants. The waiver provides an interesting challenge for inventors and companies considering addressing new and emerging technologies, knowing their own government might support curtailing those rights at a moment’s notice.

Simplicity Abroad

One of the most important international IP developments of the year was the ratification and beginnings of the Unified Patent Court (UPC). The UPC is a single legal body that has jurisdiction in patent matters for the whole of the European Union (EU). In the past, patent owners would have to file duplicate suits in multiple countries to try and stop infringers. The UPC allows for a single court to determine the validity of the infringement claim and make a ruling. The UPC allows smaller patent owners to have security in the EU without worrying about spending hundreds of thousands of dollars chasing down infringers across the EU. The advent of the UPC also allows new inventors to consider patenting their inventions in the EU with the same confidence in protection.

The patent landscape underwent significant changes in 2022. Some changes were positive notes for inventors and businesses, while others failed to eliminate confusion and ambiguity. As 2022 comes to a close and 2023 begins, the patent landscape is something for everyone to keep their eyes on.