[M4IF Discuss] Impact of recent Supreme Court decision on patent rights

[Kris Huber]

A few days ago I noticed that there has been a U.S. Supreme Court decision
(http://www.ieeeusa.org/releases/2002/052802pr.html) that the article says
impacts 90% of the patents now in force.  The article does not elaborate on
what impact the "foreseeable-bar" interpretation that was applied will have
to these patents, however.  I read an article about this in the IEEE
Institute on this, but other than that and the article about haven't done
any research.  From the face of it, however, it seems to me this court
decision could have two opposing effects:
1.  It could make it harder to get new enforceable patents and harder to
design around existing patents.
2.  It could cause it to be possible to successfully argue that many
existing "incremental" patents (those that are straightforward adaptations
of an earlier patent to an unforeseeable-to-most-people new technology) have
now become invalid.  In this way much of what was considered
protected-by-patent IP prior to May 28, 2024 may now be in the public domain
(or years closer to coming into the public domain by expiration of the valid
patent rights being granted earlier).  I think the amazing growth of the
internet was probably unforeseeable by most of us.  If the patent landscape
includes lots of "re-inventions of the wheel", so to speak, but in the
"Internet" context, it could be a major effect for them all to be
invalidated.
If I'm correct that both of these effects are possible (I may misunderstand;
I don't have much experience or knowledge of the history of the patent
system), I wonder which effect will be the dominant one.  Will it have any
effect on the validity in the U.S. of patents that MPEG-LA licenses?
Also, if such a huge change in the status of IP is possible, isn't that sort
of like passing an ex-post-facto law (a law that makes something illegal
after the commission of the so-called violation, and allows present
punishment for the past violation)?  If I remember right, ex-post-facto laws
were one of the reasons the colonies that later became the first U.S. states
declared independence.  Of course, in the U.S. where governing power is
separated in several ways, courts don't make laws, but the precedents they
set that guide how existing law is interpreted have a very similar effect.
Is there any "grandfathering" when changes of interpretation of law occur in
the courts (i.e., is the old interpretation maintained for, say, patents
older than the ones that were disputed in the particular court case that set
the new precedent)?  My understanding is that a change in interpretation of
law is instantaneous, with no grandfathering other than not requiring
repayment of licensing fees that you collected for a patent that is now
considered invalid under the new standard for interpretation (that would
really be ex-post-facto law enforcement!).
I think this is an interesting issue, and would like to understand it better
(although I have next to no time to devote to it).
Best regards,
Kris Huber