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The Hon. Randall R. Rader on ‘The Future of the Patent System’

by Brett Shandler (DLA Piper, Australia)

In May 16, 2017, AIPPI Australia (in conjunction with the Intellectual Property Research Institute of Australia) hosted a lecture by the Honourable Randall R. Rader, former Chief Judge of the United States Court of Appeals for the Federal Circuit and currently a Professor of Law at Tsinghua University, who presented on ‘The Future of Patent Law’.

In his address, Professor Rader outlined recent developments in the patent systems of two of the world’s two leading markets, China and the US. Having lectured and consulted extensively in China in recent years, Professor Rader observed that China has come to view the protection and enforcement of intellectual property rights as being a key component of its economic development, and is a strong contender to become the world leader in IP. Professor Rader noted the introduction of specialist IP courts in a number of Chinese regions, the recent adoption of compensatory damages by a number of Chinese IP courts, the significant volume of Chinese patent filings, and the high success rate of foreign litigants in Chinese IP courts. Professor Rader vividly illustrated China’s enthusiasm for intellectual property by noting that in some circumstances, Chinese prisoners can have their sentences reduced by obtaining a patent!

Professor Rader also commented on the US patent system. He said that while the US remains the world leader in innovation and IP protection, it risks ceding ground to China unless it takes steps to reform its patent system. Professor Rader noted that the Patent Trial and Appeal Board (PTAB) had been described as a patent ‘death squad’ given its high (80%+) rate of patent invalidation. Professor Rader attributed these high rates of invalidation, among other factors, to the lower standard of proof applied by PTAB (preponderance of evidence) compared to US patent courts (clear and convincing evidence), as well as the broadest reasonable interpretation standard of construction adopted by PTAB, which serves to widen the pool of potentially anticipatory prior art. Professor Rader further noted that while US patent decisions are undoubtedly of a high standard, the high cost of patent litigation in the US can serve as a disincentive to enforcing patents.

Professor Rader commented that notwithstanding its relatively small population, Australia can still play an important role in the development of the global patent system. Given its geographic position and its close ties to both the US and China, Australia is well-placed to take on a mediating role, to provide an example to both the US and Chinese IP systems, and to contribute to both IP systems.

In answering questions from the audience, Professor Rader provided further insight on the blurring of patentability and patent eligibility criteria, the possible effects of the Productivity Commission’s recent report into Australia’s IP Arrangements, and the inventorship of artificial intelligence systems.

Hon Randall R

The Hon Randall R. Rader presenting to the AIPPI