IP Law in 2014: A Moving Target
In life, certainty comes in the form of death and taxes. In intellectual property law, it comes in the form of change.
The quick pace of technology and the complexities of the digital world are forcing changes in all areas of intellectual property. "IP is somewhat of a moving target," says attorney Mike Powell of Powell IP Law. "I think there is more uncertainty and really more uncertainty in acquiring and enforcing patents and trademarks, in particular, than we've seen in many years," he says.
On the horizon for the practice is a shift from litigating to mediation and arbitration. "With the economy taking its toll on the industry, we're seeing more people say, 'You know, let's take control of our dispute,' and I think they're going to do that through mediation and arbitration," Powell says.
Legal models are changing, too. "Legal departments that traditionally would hire outside counsel to handle litigation matters by the hour are now able to tap into networks of lawyers who are great litigators who are handling these cases on a contingency," he says. "We're seeing more of that than we've ever seen in the past."
To gain some insight into upcoming trends and issues in the different areas of intellectual property, the Daily Report turned to a few well known—and not so well known—names in Georgia's IP community.
An upward trend in the number of patent filings will continue in 2014, says patent attorney Bill Needle. The America Invents Act (AIA), which changed the filing system from a "first to invent" to a "first inventor to file" system, is partially responsible for the increase, but not totally.
"While AIA has certainly helped to spur filings, perhaps more rapidly than it would have been under the old system," says Needle, "when you look back over a 10-year period you can see that there has been a tremendous trajectory upward, even under the old system of filing."
With more patents come more litigation. But an increase in patents is not the only reason for more litigation, says Needle, a partner with Ballard Spahr. "I just think that more attention is being paid to trying to preserve your position, your little niche in whatever business you're in, because of so much competition." Needle says with the increase in patent litigation, settlements may happen more often and earlier than usual in order to keep costs down.
The high-profile Apple lawsuit against Samsung, which involves numerous patent issues involving smartphones and tablet computers, has brought design patents to the forefront.
"The idea that you can get a patent for how it [a product] works as well as what it looks like has been an awakening," says Needle. "You will now see more design patent activity."