Posts Tagged: "interview"

There are two stages of litigation in the Supreme Court.  There’s what’s called the petition stage and the merit stage.  This is a phenomenon that doesn’t exist in the Federal Courts of Appeals, which are courts of mandatory jurisdiction.  There’s no doubt that if you lose a patent trial you have a right to appeal to the Federal Circuit.  You don’t have to come hat in hand begging the Federal Circuit to take your case or making it appear so sexy that they’re smitten and they take it.  But the Supreme Court of the United States has very, very little mandatory jurisdiction.  It’s almost all discretionary jurisdiction.  It gets 10,000 petitions a year and it currently grants review in about 75 cases a year.  And so there is a whole level of advocacy that begins with the filing of a petition for a writ of certiorari and then it’s followed by a brief in opposition by the winning party below and then a reply brief.  And whatever amicus briefs are filed by friends of the petitioner or the respondent in 10,000 cases in which the court is picking a few for plenary review.

The other thing I think that’s at play here, and maybe it’s the principal reason is a point that I made earlier which is our economy depends utterly on intellectual property. That is in fostering innovation and inventiveness in the manner in which the framers of the Constitution understood needed to be fostered. That is within appropriately countered system of protections for discoveries and inventions and novel expression. But that doesn’t smother innovation by competitors and by others. And because our economy is so utterly tied to intellectual property the Supreme Court correctly understands that this is a substantive area in which it is very, very important for the correct balance to be struck.

Waxman on the advantage of not being a “Patent Specialist”: Perhaps paradoxically, it seems to me, the advantage in litigation with respect to esoteric areas of the law and technology goes to the generalist. All too often, experts apply all sorts of mental shortcuts in explaining why their view is correct. It’s difficult for anyone with expertise to put herself in the mindset of someone who isn’t, and is approaching the issue as a generalist adjudicator. Even Federal Circuit judges with technical training lack expertise with respect to the vast majority of the kinds of innovation that comes before that court.

All of these accomplishments would be more than enough to fill out a lifetime spent in the law, but upon leaving the Department of Justice, Waxman has become nationally recognized and highly sought after as one of the preeminent appellate attorneys in America. He has also developed a particular niche in the area of patent law and litigation. Simply stated, if you have a patent case before the Supreme Court and you want to win, Waxman will be on your short list of attorneys to call. In fact, he should be right at the top.

In this final installment of my interview with Dickinson we discuss the Federal Circuit, including the rumors that I have heard about him possibly being on a short list for a future appointment to the Federal Circuit. As you will see, Dickinson deflected those rumors, although acknowledging they are flattering. We then move on to talk about judicial appointments in general, as well as the next big issue that will face the Federal Circuit in the coming years.

As a part of this all-access look behind the scenes I interviewed Q. Todd Dickinson, the AIPLA Executive Director who is also a former Under Secretary of Commerce and Director of the U.S. Patent and Trademark Office. This interview took place at the conclusion of our day together. In this segment of my two-part interview with Todd Dickinson we start by discussing how the AIPLA manages the daunting task of taking positions in virtually every IP issues that arises.  We then transition into discussing first-to-file and the American Invents Act.

This month I have been running a series of articles on the United States Supreme Court. Today we switch things up a little and talk patents, focusing on one of the most important decisions the Supreme Court has made over the last generation — i4i v. Microsoft. I recently chatted with Michael Cannata. His is a name you might not know, but he was intimately involved in the i4i case. He is the manager of a fund that put up the capital for i4i to fight the battle. He consequently became a Director for i4i and was involved with co-managing the litigation for i4i.

In this segment, which is the interview finale, we discuss the heightened expectation of fairness placed on government attorneys, what it is like to work for USPTO Director David Kappos, how the USPTO determines when to give guidance to examiners to reconcile case law, specifically using the KSR Guidelines as an example. Before Knight and Chen had to go I also managed to ask a few of those familiar “get to know you” questions at the end. Wait until you hear Knight’s answer for favorite pastime or hobby. Talk about a Renaissance man! The interview does end rather abruptly, but that was because we literally kept talking through the last minute they were available and on to their next set of meetings.

On Wednesday August 1, 2012, I had the opportunity to do something I have wanted to do for quite a while. I sat down on the record with both Bernie Knight and Ray Chen, the top two attorneys who represent the United States government at the U.S. Patent and Trademark Office. This starts the next phase of USPTO 2.0 interviews, which started earlier in the year. We talked about where these attorneys got their start, who they view the client as being, what it is like to represent the United States, ethical dilemmas that present, the structure of the General Counsel’s Office and the process for giving Federal Register guidance on a variety of matters.

On August 2, 2012, I spoke on the record with Erik Iverson, Executive Vice President for Business Development & External Affairs at the Infectious Disease Research Institute. In part 2, which is the final segment of the interview, we discuss the Obama Administration efforts to challenge the innovative community to put patents to work for humanitarian efforts. This project is called Patents for Humanity. Iverson and I discuss the project and whether it is likely to be successful, as well as the risk it runs of defining only one path to acceptably use patents for what the government views as humanitarian relief.

Patents for Humanity in the news was also the perfect excuse to chat with Erik. I always enjoy our conversations. We touch base regularly and talk about industry matters, and I always leave those conversations wanting to write about something. Unfortunately, I have had the hardest time getting my head around what seems to be very counterintuitive — namely the use of patented technology for humanitarian purposes. I can confidently now say that I get it. I am happy to share this interview and hope that it can shed light on what might seem like an otherwise purely altruistic endeavor without much likelihood of success. There is great work being done in this space and it is indeed a “win-win” for everyone.

In part 1 of my interview with Stoll we discussed his adjusting to life in the private sector, the fact that he doesn’t enjoy the billable hour part of private practice (just like every other attorney I know) and we discussed politics a bit, as well as the U.S. economy and innovation policy. Part 2 of my interview, which appears below, picks up where we left off discussing Presidential politics and the buzz that engulfs D.C. every 4 years. We then move on to talk about how innovation drives the U.S. economy and I get his thoughts on why we haven’t seen a great new technology that has spawned an entirely new industry as we have coming out of so many recessions in the past. We then finish part 2 discussing changes to the patent examination process and how to streamline the examination process.

On July 9, 2012, the United States Patent and Trademark Office (USPTO) announced that they are extending the First Action Interview (FAI) Pilot Program. The extension of the program will be in conjunction with a comprehensive review of the program to determine whether any adjustments should be made to the program. Further inquiry will be made into whether the program should be extended further or made permanent. During its review, the Office will consider feedback from both internal and external stakeholders. Accordingly, in addition to announcing the extension of the program, the Office is requesting comments on the program.

A conversation with Matthew Bryan, who is the Director of the PCT Legal Division at the World Intellectual Property Organization (WIPO) regarding what WIPO is doing to combat patent schemes that plague the industry. As you will see, these schemes are lucrative. In one case that Bryan tells us about, in which he was an expert witness, a court in Florida “found that in the 2 years of operating, FIPTR had received over 2.5 million dollars in payments from PCT users just in the State of Florida.” With that kind of money potential it is easy to see why the scams persist.

While there is no doubt that the rejuvenation of the Patent Office during the Obama Administration is directly related to the capable and steady leadership of Director Kappos, I equally have no doubt that Pappas has played a major role in reshaping the public image of the USPTO. During the Bush Administration there was a feeling that the patent bar was the enemy, not to be trusted. The flow of information from the USPTO to the industry and public was largely non-existent. That has all changed and Pappas has been at the center of coordinating the USPTO with other government agencies and in coordinating the message so that the industry and public can know and understand what the USPTO is doing and why.