Judge Richard Linn, in chambers at the CAFC Feb. 8, 2012.
This final installment of my interview with Judge Linn of the United States Court of Appeals for the Federal Circuit. In part I of the interviewwe discussed a number of general background issues, including how the Judge got into the field of patent law and became a Judge on the Federal Circuit. In part II of the interview we discussed the Inns of Court and the Richard Linn Inn Alliance, as well as civility (or lack thereof) in litigation.
In this final segment of the interview, which appears below, we move into the issues of the day: the changing patent laws and Supreme Court interest in patents. We also discuss Judge Linn’s decision to take senior status, the fact that he won’t be able to sit en banc unless he was on the original panel, and the Judge’s idea that only few cases really should be designated as precedential opinions.
Senator Ron Wyden was first to submit legislation on unlocking cell phones.
The Digital Millennium Copyright Act (DMCA) has recently become a hot topic in Congress. The renewed interest is the result of a “We the People” petition that successfully reached the required number of signatures to merit a response from the White House. The petition, titled “Make unlocking cell phones legal,” said, “We ask that the White House ask the Librarian of Congress to rescind this decision, and failing that, champion a bill that makes unlocking permanently legal.” The White House fully agreed with the petition, responding, “It’s time to legalize cell phone unlocking,” and adding, “if you have paid for your mobile device, and aren’t bound by a service agreement or other obligation, you should be able to use it on another network.
Within days of the White House’s response, lawmakers were rushing to offer legislative fixes compatible with the petition. Senator Ron Wyden (D-OR) was the first to introduce a bill, the Wireless Device Independence Act (S.467), which would create a permanent exemption for unlocking. Most recently, Senator Patrick Leahy (D-VT) has introduced legislation, cosponsored by four other senators from both parties, that would reverse the Library of Congress’s decision and restore the exemption.
But many proponents of the original petition reacted negatively to these legislative proposals. Derek Khanna, for example, one of the most public advocates of cell phone unlocking, said of the legislation that “the worst … approach would be to simply reverse the decision of the Librarian of Congress and provide a temporary ‘exception’ for three years and let the Librarian rule on this again in three years.”
On February 28, 2013, I spoke at the Association of University Technology Managers (AUTM) annual meeting in San Antonio, Texas. The topic of the panel I participated on was simple — Tech Transfer Needs You to Defend Bayh-Dole. My remarks appear below.
I provide this longer than intended introduction to my remarks at AUTM because I was speaking to a crowd of individuals who know the fact and they understand the truth. I say below that there is not a shred of evidence that supports the detractors, and 100% of the evidence supports those who favor Bayh-Dole and a continuation of University technology transfer that is based on ownership of patent rights. I don’t go through fact by fact what we in the industry all know to be true, which means that the inevitable head-in-the-sand detractors will want to pounce and claim that I am wrong. If you are inclined to disagree with me then read the links above, and read the many other articles we have published on Bayh-Dole. The evidence is overwhelmingly in support of a robust, property based, IPR technology transfer regime that was ushered in by the landmark Bayh-Dole legislation.
First make sure you’re right, then go ahead. ~ Davy Crockett
“The Fall of the Alamo” by Robert Jenkins Onderdonk, 1903.
(Adapted from my talk to the Association of University Technology Managers Annual Meeting in San Antonio, Texas. The meeting coincided with the anniversary of the siege of the Alamo which fell on March 6, 1836.)
The ancient Chinese saying: “May you live in interesting times” was meant as a curse. Well folks, we live in interesting times. We need to recognize it, roll up our sleeves, and get to work. If my parent’s generation could survive the Depression, fight and win World War II, and come home to build the most prosperous nation in history, surely we can meet our tests.
If you’re paying attention at all, you must have noticed that there are forces out there who just don’t like what you do. Some say you’re too focused on making money, some say you’re not focused enough (we really should introduce these folks to each other), some don’t believe it’s moral for universities to work with industry, and many have built very successful careers launching attack after attack on Bayh-Dole and the very patent system itself.
The FTC filed the brief in the matter of Actelion Pharms Ltd. v. Apotex Inc. (Case No. 1:12-cv-05743), which involves allegations that Actelion Pharmaceuticals has prevented Actavis, Apotex, and Roxane from offering competing generic versions of Actelion’s brand drug products, Tracleer and Zavesca, by precluding them from obtaining samples of those drug to perform necessary testing.
In order to receive approval from the Food and Drug Administration, generic firms are required to conduct bioequivalence testing to demonstrate that a generic formulation is therapeutically equivalent to the brand drug. This testing requires access to a limited amount of the brand product. Tracleer (bosentan) is used to treat pulmonary arterial hypertension and Zavesca (miglustat) is used to treat type 1 Gaucher disease, a disorder in which the body does not produce enough of an enzyme to break down fatty substances.
Judge Richard Linn of the Federal Circuit, in chambers on Feb. 8, 2013.
On Friday, February 8, 2013, I had the honor to interview Judge Richard Linn of the Federal Circuit. We met in his chambers with the recording going for approximately 60 minutes. In Part I of the interview we discussed Judge Linn’s early interest in patent law and how he found himself appointed to replace the recently deceased Judge Giles Sutherland Rich. We then discussed engaging as a lawyer with civility while still zealously representing clients. That brought us to a topic near and dear to the Judge’s heart — the Inns of Court and the many patent focused Inns across the country that together make up the Richard Linn Inn Alliance.
In Part II of the interview, which appears below, we pick up with the discussion of the Inns of Court and further discuss civility and “Rambo style lawyering,” which Judge Linn explains was really the genesis behind the forming of the Inns of Court.
QUINN: I’m a member of the Pauline Newman Inn that meets at the Patent Office, and we’re members of the Linn Inn Alliance. I mean, first off how does that feel? How did it come about, I guess, maybe, first off. Second is how does that feel that the entire industries, the lawyers, are lining up in droves to join the Linn Inn Alliance? I would think that that is great evidence of what the industry does think of you and that this is really promulgated out of one Inn.
LINN: Well, I’ve been actively involved in the Inns of Court since I came onto the Court. The American Inns of Court is a unique organization. It plays a unique and important role in promoting ethics, civility and professionalism, and that’s what appeals to me. In 2000, I started attending meetings of the Giles Rich Inn, which meets here at the Federal Circuit every month. I’m lucky enough to fill the seat once occupied by Judge Rich. We’re sitting here in my chambers, which once were Judge Rich’s chambers. And when I first came on to the Court I felt a special responsibility to conduct myself in a way that would have made him proud, because he was always an icon in my eyes.
There are a number of lessons that can be gleaned from the field of data mining and applied to patent analysis but for the purposes of this article let’s focus on three of them to help us understand how to conduct patent analytics that provide real value.
How to Write a Patent Application is a must own for patent attorneys, patent agents and law students alike. A crucial hands-on resource that walks you through every aspect of preparing and filing a patent application, from working with an inventor to patent searches, preparing the patent application, drafting claims and more.
Without hesitation I recommend One Simple Idea and think it should be required reading for any motivated inventor. There is so much to like about the book and so much that I think author Stephen Key nails dead on accurate. The book is educational, information and inspirational. For the $14 cover price it is essential reading.
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