“Without a strong healthy business nothing else really matters–not even IP. A successful IP [plan] is one that follows the business and strategizes to meet its goals,” says Cynthia Raposo, Senior Vice President of Underarmour. The questions that need to be answered that go into formulating an intellectual property strategy–like when the company wants a profit, whether it is interested in attracting investors or academic collaborations or buyers, whether it will become a public or global company, what its niche in the market is, how fast developments in the field are– can’t be fully answered without not only consulting the business people, but being on the exact same page as them.
Instead of trying to warp business around IP or thinking about why and when IP might make incentives for business, as has been the case in the scholarly literature, we should start shifting the focus and instead discuss IP strategy in the context of business growth and development. This year at the AIPLA Mid-Winter Institute, the panels allowed us to take a detailed look at seven companies (Underarmour, RedHat, GlobeImmune, Cubist Pharmaceuticals, Harley Davidson, Ventana Medical Systems, and Global Partner Holdings) who have done just that and have progressed from small start-ups to well-known, profitable companies. Their successes emphasize why and how IP strategy should change as the business changes.
For the past 15 years I have been writing articles and commentaries in the hope of educating those new to the intellectual property world about the counter-intuitive characteristics that comprise the U.S. patent system. Intellectual property generally, and patents specifically, are among the most important assets most companies own. Yet the public knows little about the importance of employing an exclusive rights system for innovation, and most senior business executives and seasoned investors are befuddled by it. Their choices can cause those with more intimate IP knowledge to scratch their head in disbelief.
It will not come as a shock to observers of the U.S. businesses that manufacturing is no longer the focal point of the economy. Indeed, the continuous trend is toward an innovation and technology-based economy where intellectual property rights, particularly patents, rule the day. To paraphrase Bruce Springsteen — the manufacturing jobs are gone and they ain’t coming back.
Prosperity in the United States is now almost completely tied to innovation, and a prerequisite to successful innovation is access to capital. The central theme of Bruce Berman’s new book of timely essays, The Intangible Investor, focuses on the issues surrounding our innovation economy: capital, valuation and leveraging IP for business advantage. While are there are many sophisticated investors and business executives, the domain of intellectual property and intangible assets is very different from the bricks and mortar world that they inhabit. Unlike real estate, intangible assets are not scarce, can be infinitely replicated and wholly divided. That makes monetizing those patents that have value a formidable challenge.
India’s Commerce and Industry Minister Anand Sharma has been vocal in calling for the U.S. Government to renew its Generalized System of Preferences (GSP)program, which since 1976 has provided preferential duty-free access to imports from developing countries.
It is not hard to understand why India is so interested in seeing Congress pass GSP renewal legislation. Prior to the expiration of GSP program’s authorization in July, 2013, India was the top beneficiary of these unilateral tariff breaks of the 108 eligible countries. In 2012, India exported $4.5 billion of goods duty-free to the United States under the GSP, including automotive parts, steel tubing, and plastic resins. Still, the removal of GSP tariff preferences does not close off the U.S. market to Indian exports, since the U.S. simple average tariff is bound at low rate of 3.5% under the WTO.
Retroactive renewal of benefits has been the norm during the GSP’s periodic lapses in authorization over the years, so it is anticipated that India will soon regain these tariff preferences. The long-term outlook for India’s GSP status, however, is clouded by Indian economic policies which run counter to the congressional-mandated criteria for country beneficiaries. In particular, India’s inadequate protection of intellectual property rights (IPR) threatens its continued participation in the GSP program.
The oral argument schedule for the Supreme Court over the next few months is heavy on intellectual property cases.
The Court will hear oral argument as follows: on February 26, in two cases on granting (Octane Fitness) and reviewing (Highmark) attorneys’ fee awards; on March 31, in a case (Alice Corp.) on patent eligibility of system and computer-implemented method claims; on April 21, in a case (POM Wonderful) on claims under Section 43 of the Lanham Act challenging labels regulated by the Food and Drug Administration; on April 22, in a case (Aereo) on whether a provider of broadcast television programming over the Internet violates a copyright owner’s public performance right; on April 28, in a case (Nautilus) on the proper standard for finding indefiniteness invalidity for patents; and on April 30, in a case (Limelight) on joint liability for method claim infringement where all of the claimed steps are performed but not by a single entity.
At first blush Dr. David Taylor’s claim that “continuing progress in the pharmaceutical and other health sciences will eliminate disease related mortality and disability in people aged under 75 by 2050” seems a bit unbelievable. Promisingly, he and colleagues at the University College London (UCL) School of Pharmacy and at the London School of Economics (LSE) convincingly support the claim. In a recent report, the authors celebrate the successes of biopharmaceutical progress while highlighting the importance of both continued innovation and greater access. The report meticulously lays out the historic and ongoing interaction between intellectual property rights, global health progress, patient advocacy, ethical obligations, and industry strategy.
The core of the analysis focuses on the extent to which intellectual property rights serve to foster innovation and improve global public health, both today and tomorrow. Taylor et al. recognize that without intellectual property rights private investment in expensive, risky and uncertain biopharmaceutical research and development projects would not take place. Acknowledging that the debate is more nuanced that a choice between firm profits or patient access, the authors argue that alternatives to the existing IPR regime would be unlikely to deliver the therapeutic advances that we enjoy under the current system. Nevertheless, they describe the importance of recent proposals such as the Health Impact Fund and Advanced Market Commitments as valuable additions to IPR based provisions.
Marla Grossmanis an attorney and partner with the American Continental Group,where she represents clients before the White House, US federal agencies and the US Congress. In other words, Grossman is a lobbyist, but not just any lobbyist. Her clients are a whose-who among the elite in the entertainment industry.
In part 1 of our interview we discussed the prospects of patent litigation reform, the likelihood that Congress will open up the Copyright Act and pursue legislative reforms, and how to get a message heard on Capitol Hill. In part 2 of our interview, which appears below, we pick up where we left off discussing how to take a message to Congress, and then we transition into discussing how quickly legislation can be derailed, as was the case with SOPA, and the unfortunate need to continue to fight the same policy battles time after time. We end generally discussing the political climate in Washington, DC, and how it has changed over the years.
Without further ado, here is the finale of my interview with Marla Grossman.
QUINN: I also think that there is a fundamental misunderstanding on the part of many. I wonder whether it’s an intentional misunderstanding or whether it’s just that they don’t know any better, but there are a lot of people who seem to think that putting out a product is innovation. While it may be a new product to them, that’s not what innovation is about. What that is in many cases is about something you said earlier – many seem to want to be able to take the intellectual property of other people without consequence. How do we combat that kind of growing definition of innovation or growing understanding of innovation
If you are familiar with the politics of intellectual property as it is played out inside the beltway you undoubtedly already know Marla Grossman. Grossman is an attorney and partner with the American Continental Group, and her bio page says “she helps her clients with strategic public policy planning and representation before the White House, US federal agencies and the US Congress.” She is a lobbyist who seems to most typically represent clients with a pro-intellectual property position. Her client list is a virtual whose who of the elite entertainment industry.
Grossman is “a mover and a shaker” around DC. Everyone knows Marla, and she knows everyone. You can find her at virtually every IP related event in the Greater DC area, whether it is at the Library of Congress, the United States Patent and Trademark Office, AIPLA, a black-tie affair or other industry event. We have included her in our “insiders” series and in 2013 the National Law Journal referred to her as a “leading copyright attorney and lobbyist.” She is the real deal.
Perhaps the reason Grossman has become so sought after as a representative, particularly in the copyright and entertainment industries, is because of her time working on Capitol Hill. The 1990s saw a number of legislative issues of great importance thanks to the sudden growth of the World Wide Web. During this time, from 1997-1999, Grossman served as minority counsel to the US Senate Judiciary Committee, where she worked to develop policy positions and legislative initiatives for US Senate Patrick Leahy (D-VT), who now Chair’s the Senate Judiciary Committee. During her time working on Capitol Hill Grossman worked on a variety of intellectual property, Internet usage, entertainment, online gaming and technology issues for Senator Leahy, and was directly involved with major reforms including the Digital Millennium Copyright Act; Copyright Term Extension Act; Trademark Law Treaty Implementation Act; Domain Name Amendment Act; and US Patent and Trademark Office Reauthorization Act.
It’s 2014, and an angel calls me “grandpa”! What happened to that teenage kid in the mirror — and who is the old man staring back at me? Well, at least the acne is gone. Enough on the personal horrors of aging (which are way worse than any Hollywood syfy). What happens to IP law in 2014?
Near the end of 2013, the Supreme Court granted cert in CLS Bank v. Alice on issues related to software patentability, and many expect that the sagacious Justices will clarify the confusion they created about patent eligibility in earlier decisions, like Prometheus, that were amplified in the splintered en banc panel on CLS Bank at the Federal Circuit. I prophesy that the best we can hope for is a Bilski-esque vague instruction (wherein our top court opined that some business methods are patentable, citing the machine or transformation test as one viable test, without pointing to other valid tests and without enlightening the confused public.)
The Court is once again likely to limit software patentability in some arcane way that harms job creation and stifles economic growth. The bright side is that the Court’s failure to protect our largest growth industries may help spur the legislative branch into further action. A decade of intermittent patent reforms has created a permanent cadre of patent lobbyists very willing to focus their considerable efforts and talents on a new patent issue. It would be advantageous to the patent system if that attention were productively channeled to specifically include our emerging technologies in our patent statutes, and to legislate patent eligibility in a manner that treats 101 as the broad filter it was intended to be, while employing the other patent statutes, such as 112 and 103, to correctly provide the narrower filters.
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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