In Part I of the interview I spoke with Barber and Lewis about the AIPLA generally and how it manages to specifically accomplish its mission, which seems to be to voice an opinion of the membership on virtually every intellectual property issue both domestic and foreign. In Part II, which is the finale, we start off talking about the assault on intellectual property rights, particularly the erosion of patent rights.
QUINN: Well, let me ask you guys this since you guys are in the thick of these things and see what’s crossing over the AIPLA desk so to speak. It seems that what is going on across the board is an assault on intellectual property rights over and over and over again in multiple different forms, with respect to multiple different technologies, whether it be copyrights online, or whether it be with respect to patents. With patents I characterize it as the eroding value of a patent, particularly given that you’re not entitled to a permanent injunction and they’re getting harder and harder to get thanks to obviousness being tightened up. Do you see any movement at all in a pro IP owner area?
BARBER: This is something that has concerned us for quite a while. I’m at the IPC annual meeting right in Vancouver, and Judge Rader was here talking today about this very thing. And he emphasized to all of us in the audience the IP bar that it’s our obligation to defend our profession and the IP system against all these assaults. We’re certainly trying to do that at AIPLA. I don’t know how effective we’ve been, but we’re trying. We have a rapid response team that when an article comes out in the New York Times or the Washington Post, or whatever media that’s negative towards IP in a way that we think is unfair or based on inaccurate facts or just unfair for some reason, we have a group of writers that will prepare a response and then we’ll try to get the response published. Just yesterday I was invited to submit a piece to the New York Times in a section that they call Room For Debate, and the question was, does intellectual property protection discourage or encourage innovation? And so I prepared a piece for that and there were like four other contributors and now there’s this whole discussion going on about that. Many of the comments that I’ve looked at today are of course negative towards intellectual property. So it’s a concern. I think it’s a result of the fact that intellectual property has become such a big deal in our society. The flip side of that is it’s coming under a lot more scrutiny now by the media and public at large. And we have to do what we can to educate the media and the public at large as to why we have an intellectual property system, what the benefit to society is. It’s grounded in our constitution.
QUINN: Sometimes I wonder whether they really want to be educated. Because I just over the last few days I’ve written three articles rebutting one an article in Ars Technica, another article in Forbes, and then another article in the New York Times. [See article 1, article 2 and article 3]. Whether it’s Congress or certain courts that don’t want to have strong intellectual property rights, we’re getting it from all sides, and the information is not very good that’s out there. Somebody raised to me today something that made me kind of scratch my head. It seems like a lot of this anti-intellectual property movement is coming from at least a handful of really, really large companies that maybe have a business model that would thrive more if there was not such strong intellectual property. I wonder whether the media is catering to those views out of some financial benefit that they receive, because the media everywhere since the Internet has taken a hit. You know, TV viewership’s down, readership in newspapers and magazines is down. It almost seems like they need to sensationalize things. And maybe there’s some pandering going on. I don’t know what the answer is because it seems so self-evident to me and when you look at the facts, yes, intellectual property enhances innovation, there’s no doubt about it.
LEWIS: I think this is our personal piece of a much bigger problem. And when I look at things like the Occupy Wall Street movement, when I look at things like music downloading and the iPod revolution, frankly, when I look at how fractured patent owning companies were during the AIA patent reform debates. I think these are all new things to our world. And we need to come to grips with the changing world.
QUINN: That doesn’t sound very good for content creators and innovators, though.
LEWIS: I think we’re in for some more rough times. I don’t think our rough times are over.
QUINN: Yeah. Well, let me through this out there because once this AIA thing ended, so many people, at least in the patent community which is where I am most familiar, took a deep sign of relief and said, okay, that’s over, now we can get back about our business. And that was the once in a generation or once every other generation kind of shake up. But I look at it and I don’t think it’s over. I think that was the start of legislative involvement, and I think it’s only a piece of a much larger puzzle. And I worry that people in the industry have now convinced themselves that this was just a bump in the road or a change that everybody’s going to have to get used to, when I see it as part of a much bigger issue.
LEWIS: We went through a period of time when the Supreme Court and the 6th circuit didn’t like patents. Never met a patent they liked. And were very anti patent. So let’s compare and contrast that to this week with Judge Posner. I think we are just seeing the pendulum shift back and unfortunately for some reason this pendulum seems to shift back and forth and we’re on the downward slide at the moment. And the more we can do to get through this downward slide and back up into where the pendulum is in the direction of supporting IP, frankly, I think we’ll see a better economic growth in the United States. I think we’ll see better jobs reports. I think we’ll see better innovation, better reward for innovation, better incentivization for innovation. And I think this is a huge economic issue for the country that some people get, but some don’t.
QUINN: I don’t think that this could be happening at a worse time. We’re still not anywhere near where we were four years ago. And maybe there’s some signs of life, occasionally it looks that way, and then you get some other bad numbers of conflicting numbers and you feel like you’re going sideways. And I’ve never heard anybody disagree with this: it is that the small businesses that create jobs in America. And those are the ones for whom the intellectual property rights are the most important. So is this something that you guys think AIPLA is going to have in a big way on your radar screen in the coming year and years ahead?
LEWIS: I had an hour long conference call just this morning on that very topic amongst people trying to see how to better position us moving forward. Because I do think this is a jobs issues. I do think it’s an economic issues. And I do think we need to make sure that we have an administration that understands that. And Director Kappos, he gets it. Dave Kappos gets it and understands it. And I’m not as familiar with the current Acting Commerce Secretary, but I’ll tell you the prior Commerce Secretary Locke got it. And I think they made sure that that voice was well heard within the administration. The problem becomes when you have different agencies of the administration that are fighting. And we see that often in Supreme Court cases where we’ve got a solicitor general who’s looking at lots of different parts of the IP community and the patent office is not always saying the same thing as like an NIH.
QUINN: OH, NIH, yeah. And also with HHS, too. They’ve taken some positions as well that I think are contrary to what the innovative, particularly biotech community would consider good positions.
LEWIS: I don’t know where biotech is going to be now because I think the Supreme Court has very much hurt the biotech industry.
QUINN: Well, I think they certainly have raised questions where if they weren’t going to answer those questions they should have left well enough alone. That’s my opinion. But shifting gears slightly, I was talking to somebody last night at Inns of Court and wanted to get your take. There’s so much uncertainty. We’re not going to know for five or ten years at least really before we can I think tell clients exactly what the AIA means on some of the various provisions. They’re going to get litigated. And that’s the process, I get that. But it seems like there’s so much uncertainty on so many different fronts. And that’s what I feel the real anxiety personally, and I feel it when I try and take the pulse of the industry. I think there is a tremendous amount of anxiety out there. So what would you guys, first if you want to comment on that. But then second, what would you recommend people do?
BARBER: Well, a lot of good questions and not easy answers. I think a big part of it with AIA is education. And we’re certainly at AIPLA trying to educate our members about the impact of AIA on their practices and their clients, and yeah, we don’t have all the answers, but I think it’s important to provide as much education as possible. I think we’re very focused right now on the rules that the Patent and Trademark Office is implementing for some of the new procedure, like post grant review, inter partes review. Frankly, those rules and procedures did not come out as we had hoped. So we’ll just have to see how they work. And if they don’t work well, then we’ll have to try to get them fixed. So there is some uncertainty in that regard. But we’ll just have to wait and see how they work for the patent owners and patent community.
QUINN: Yeah. And like one of the other areas of uncertainty obviously is on—everybody, you can’t go to any event without somebody talking about it, is 101. I mean, five years ago, probably not even five years ago, if somebody had said, 101 is going to be the dominant issue for the foreseeable future, you would have been laughed at. It would have been ridiculed, what are you talking about? And here were are now—
LEWIS: Excuse me, Gene, I said it. I said it.
QUINN: Oh, you did?
LEWIS: I did because I said to the patent office that if they’re going to keep looking at all these garbage patents instead of rejecting them on 102 and 103 grounds, they’re going to first want to do a 101 inquiry and if they find a 101 issue take that up to the courts. They were going to get a whole bunch of garbage patent applications, patent applications the public was going to scoff at coming up on appeal. And people were going to look at the subject matter that they knew was not new, that they knew was obvious, or not even novel. And we were going to spend a lot of time fighting about patentable subject matter on claims that were clearly not patentable. To talk about all of a 101, 102, and 103 and don’t first do a 101 test. And I was told I was wrong.
QUINN: And now that’s what the patent office wants them to do now. I totally agree with you. If you look at these claims, these cases that go up and this becomes a hard thing to articulate to the media, and to the public at large is, no, you’re not defending that claim. Everybody agrees that claim should not have been issued. The question isn’t whether that claim should be issued, the question is are you going to kill an entire area by saying this is not patentable subject matter. And it doesn’t fit on a bumper sticker, and if you’re not steeped in patent law it doesn’t make sense to you because unfortunately we use the word “patentability” and “patentable” in two different totally different ways in our area.
LEWIS: Bad facts make bad law.
QUINN: Yes, amen to that.
BARBER: I think that’s exactly right. And that’s another thing that we’re looking at within the AIPLA is whether perhaps a legislative fix is in order here to address this 101 problem.
QUINN: Getting back to, and I know that we’re going a bit longer than I just told you we would go, so maybe we could probably try to wrap it up on this. But bringing it back to something actionable. Like what you were saying Judge Radar was just saying it’s all of our responsibilities. What do you think people can be doing, and if you want to take an opportunity to say what kind of volunteer opportunities there are available at AIPLA for people who do want to get involved and maybe don’t have a way to do so otherwise.
BARBER: We can certainly use more help in this exact area. And that is commenting on negative articles about IP just in general. Improving the public perception of IP and there are lots of ways to do that. There’s not only responding to negative articles, but getting out there into schools, elementary schools, high schools, educating the public at large about the intellectual property system and why it’s important. We have a number of committees that are involved in that activity within AIPLA, but we can certainly use more help. So there is a lot of opportunity to join committees and get involved in that type of process.
LEWIS: If for instance we have a website called Creativity In Bloom in which we’re starting to populate information for different age groups to try to show them, teach them and get them to understand intellectual property. And that’s part of a public initiative. And I would say if somebody wanted to address the issue that you raised directly, Gene, get involved in part of the public education function.
QUINN: And I lied. I’m going to follow up with one quick question. [Laughter] Because as you were mentioning that, I just thought to myself, now wouldn’t it be great if members of Congress would actually sit down and just take an education, a class or session on this stuff? Has there ever been an effort on the part of the AIPLA to do that, particularly maybe, not that you would get people who had been there for many years who think they understand the area, but like the freshman class. It seems like at least with the last several freshmen classes, which have been rather large, there’s been some hunger on their part, at least if the media can be believed, to get a crash course in the issues that they’re going to be dealing with.
LEWIS: We discussed it internally in the past. And the response we’ve gotten back has been much more that it’s staff interest than legislator interest. And we’ve had individual meetings, we’ve had group meetings with the staff that are involved in the topic. But have not really seen legislators wanting to meet or accepting invitations. That’s not to say we wouldn’t go forward with it if the opportunity arose.
BARBER: We’ve also talked about that in the context of educational programs for judges, including Supreme Court judges. We really haven’t implemented that. But we have recently created a judges committee. So this is a committee of judges, federal judges, judges at the Patent and Trademark Office to help design programs and provide input to AIPLA and vice-versa in the context of the judiciary.
QUINN: Okay, well, it’s all very exciting stuff that you guys have going on. And, Jeff, I wish you well in the next year. And, Bill, I guess you’re going to get some time to breathe and go back to practicing. Although I know you’ll still be involved.
BARBER: Thanks so much, Gene. Yeah, I appreciate your efforts and it’s a pleasure to talk to you.
LEWIS: Thanks very much.