Patent Attorney and Founder
So, do I think the Restore and Prevail Acts will level the playing field in patent infringement cases? Honestly, I’m not entirely sure. But, newsflash—I’m not a fortune teller, even if I am a trademark attorney.
Here at Bold, we specialize in patents, but we don’t handle litigation ourselves. Instead, we focus on pre-litigation infringement analysis. When it comes to filing cases in federal court, we work with partners who are well-versed in those proceedings. They’re the experts in court, negotiating and settling cases. For those of you listening at home, it’s pretty rare to find a patent or trademark lawyer who does both the registration and litigation side, especially when it comes to federal court.
At our firm, we may send a few cease-and-desist letters or handle some trademark trial and appeal board cases. But we leave the heavy lifting in litigation to the pros. It’s just too much to balance both. That being said, it’s still important for patent attorneys to stay on top of the law. Patent laws evolve over time—something granted a year ago might be affected by a new Supreme Court ruling. A great example of that is the Alice v. CLS Bank case, which led to many software patents being invalidated.
Now, the Restore and Prevail Acts deal with some issues that stem from a case like eBay v. Microsoft. The big question here is: should there be a “rebuttable presumption” of a permanent injunction when a judge rules on infringement? In simple terms, that means when a court decides someone is infringing a patent, should there be an automatic assumption that the infringer must stop what they’re doing—unless they can prove otherwise?
I’ll admit, this gets a bit tricky. But I think these acts would help give patent owners more power. Under current law, if a small business wins a patent infringement case against a larger company, they can’t always count on the infringer being forced to stop. This new bill would change that. It would make it so, once the court makes a final decision, the infringer must stop immediately—no exceptions, unless they can make a strong case to the contrary.
As for the Prevail Act, it’s a bit over my head, but here’s the gist: it aims to clean up the system around Inter Partes Review (IPR), which allows defendants to challenge patents even after a court decision. Right now, defendants could face two rounds of challenges—one in federal court and one in IPR, which isn’t efficient. The Prevail Act tries to close that loophole, ensuring that once a case is decided, it’s final. No double jeopardy.
So, in short: Yes, I think these changes will tilt the scales a bit more in favor of patent owners. It’s a win for those who’ve been on the losing end of patent infringement battles.