In the field of patent law, many clients have felt massive ramifications from both the introduction of administrative trials in the U.S. Patent and Trademark Office, as well as the 2014 Supreme Court decision in Alice Corp. v. CLS Bank International. Many clients have observed that these changes, and related reforms, have effectively decreased the value of patents.
Instead of modifying patent procedures in frustration to work around these developments in the law, clients can also engage in efforts to reform the law. The most notable example of these efforts is lobbying Congress to change a statute. Another example, which is more overlooked, is the submission of amicus briefs to the federal courts.
Amicus briefs are “friend of the court” briefs that any citizen or corporation can seek to submit to help the court make its decision, such as by exposing the court to the views, interests, and considerations of third parties. Clients can strengthen the effectiveness of amicus briefs by finding high-profile attorneys to author them (e.g., companies often hire former Solicitors General). Clients can also strengthen the effectiveness of amicus briefs by grouping together to submit a single brief that represents a trade group, professional organization, or a set of corporations with a common interest in the outcome of litigation.
Of course, clients should also be careful when seeking to shape and reform the law through amicus brief filings. For example, clients that benefit from strong patent rights to protect their investments can also be potentially harmed by infringement lawsuits from competitors. As a specific example, about 40 years ago, IBM submitted a notable amicus brief in the original Supreme Court decision that created the legal doctrine on which the subsequent Alice decision is based. In that brief, IBM argued for weaker patent protection for software. In the Alice decision, after IBM’s business model had evolved, IBM reversed course and submitted an amicus brief arguing for stronger patent protection. Clients may want to keep in mind examples like this when actively seeking to shape and reform the law, whether through lobbying efforts or through the filing of amicus briefs.