EMERGING TRENDS IN INTELLECTUAL PROPERTY LITIGATIONWill The Insurance Industry Keep Up?Andrews Downs, Esq. Bullivant Houser (San Francisco, CA) Professor David Olson Boston College Law School Sherilyn Pastor, Esq. McCarter English (Newark, NJ) Submitted for the Boston College Law School Symposium on January 22, 2016 at Boston College Law School One of the most fertile areas of litigation in recent years has involved the alleged theft or misappropriation of trade secrets, usually by former employees of the policyholder plaintiff. Rapidly gaining, however, are claims for infringement of copyrights, trademarks, patents and trade dress. One thing is clear, intellectual property litigation and regulation relating to such litigation will continue to be a focus for companies in 2016. Technology companies have traditionally pressed lawmakers for measures limiting patent rights, while pharmaceutical companies, which spend significant sums and years on research and development, have generally pressed to strengthen patent protections. In response, lawmakers have recently introduced a number of patent and intellectual property related bills. The Innovation Act introduced in 2015, for example, seeks to curb abusive litigation by “patent trolls.” It seeks revision to patent litigation, including raising the pleading standards for patent complaints, limiting discovery, limiting the venues in which patent suits can be brought and requiring fee-shifting. The Support Technology and Research for Our Nation’s Growth, or STRONG, Patents Act, also was introduced in 2014. It is geared toward concerns that America Invents Act reviews have made it too easy to invalidate patents. It seeks modifications to review and reexamination proceedings, and offers measures making it easier to show willful infringement. What legislation will develop, and what impact it will have on litigation, remains to be seen.
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