It is the Subcommittee on Intellectual Property, Competition, and the Internet that has primary jurisdiction over matters relating to intellectual property matters. The Subcommittee’s jurisdiction includes copyright, patent, trademark law, information technology, antitrust matters and other appropriate matters as referred by the Chairman of the House Judiciary Committee. Thus, the House Subcommittee on IP that will be one of the primary focal points for any new legislation that deals with intellectual property over the next two years.

Two weeks ago House Judiciary Committee Chairman Bob Goodlatte (VA-6) announced the House Judiciary Committee’s Republican subcommittee assignments for the 113th Congress. See Republicans of the House Subcommittee on Intellectual Property. Today we meet the Democrats on the Subcommittee.

Mel Watt (NC-12), Ranking Member

Representative Mel Watt was born in Mecklenburg County, North Carolina on August 26, 1945. He was a Phi Beta Kappa graduate of the University of North Carolina at Chapel Hill in 1967 with a BS degree in Business Administration and in 1970 he received a JD degree from Yale University Law School. From 1970-1992, specializing in minority business and economic development law. In 1992, Representative Watt was elected to the U.S. House of Representatives. He is member of the House Judiciary Committee, House Financial Services Committee and served as the Chairman of the Congressional Black Caucus (2005-2006).

The following article is the second of a three-part series. An abbreviated version of this article originally appeared in the Sept./Oct. 2012 issue of IAM Magazine.

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One of the more indelible images of the civil rights movement are those from the Spring of 1968 as Black sanitation workers went on strike in Memphis, Tennessee holding signs that read “I am a Man,” in their fight for economic equality.  (This is the reason that civil rights leader Martin Luther King, Jr. was visiting Memphis when he was assassinated on April 4, 1968.)  Now those signs should not only read “I am a Man Who Thinks,” but “I am a Man Who Thinks and My Thoughts are Valuable.”

In part one of this series, I pointed out the “gaps” or “divides” in our lexicon that measure the opportunity (or lack thereof) that certain populations have for economic success.  These disparities include the “digital divide,” “education gap” and “wealth gap” that exist between the Black and White populations in the U.S.  I also gave some historical perspective on the negative views of Black intellectual capacity against which we can look to the convergence of intellectual property (IP) with identity politics in assessing the current state of affairs.

Now, in my quest to determine if IP rights should be the new civil rights in America, I define a new gap that focuses on the currency of our 21st century economy. It is my position that a skillful IP attorney can be a modern day civil rights attorney by aiding Blacks to create IP rights in order to preserve their exclusive right to economically exploit the fruits of their creativity.

The following article is the first of a three-part series. An abbreviated version of this article originally appeared in the Sept./Oct. 2012 issue of IAM Magazine.

As a first-generation American whose parents emigrated from Haiti, the poorest country in the Western hemisphere, the Civil Rights movement has always interested me.  In fact, my mother always dreamed that her Ivy League-educated, lawyer son would become a civil rights lawyer.  I am, however, an Intellectual Property (IP) lawyer.  That is, I deal with the patent, copyright, trademark and trade secret laws for clients who are mostly in the electronics, software, financial services and e-commerce fields.  This is not exactly the job description of an NAACP attorney.

In an aim not to disappoint my mother, however, I’ve always argued to her as follows:  “The civil rights movement was really about fighting for the economic rights of Black Americans – the right to equal pay, the right to spend their money anywhere they wish, etc.  In the 21^st century innovation-led world, economic rights are all about IP rights.  How so?  Well, less than 5% of American workers are now employed in manufacturing.   America is becoming very much a white-collar society, the outputs of which are intangibles protectable by IP rights.  That is how we Americans measure wealth and that is how I can help fellow Black Americans.”  A skeptical “hmm,” is how she always replied.  Well, after really examining the current state of affairs, I too am starting to become skeptical of my own argument!  But should I be?

A report assembled by the USPTO and the economics and statistics administration (ESA) states that intellectual property intensive industries account for 27.1 million jobs (18.8% of all employment). These same IP intensive industries, which are better defined in the report, also account for $5.06 trillion or 34.8% of the U.S. GDP. See also IP Contributes $5 Trillion and 40 Million Jobs to US Economy. Therefore, it is clear to see the importance of intellectual property within the economy of the United States.

“The first step in winning the future is encouraging American innovation,” said President Barack Obama explains almost two years ago in his State of the Union Address delivered to Congress in January 2011. Innovation is the process through which new ideas are generated and ultimately put into the marketplace.  Innovation is one of the main forces behind the growth of the U.S. economy — it spurs national competitiveness.

Innovation and how to foster next generation technologies is a topic of very active discussion within businesses across the country. But how can America continue to be one of the most innovative countries in the world?  The rapid adoption of IP management and licensing platforms built around social collaboration seems to lead us to one answer – open innovation. Indeed, with today’s technology allowing for the seamless transfer of information – R&D departments have little to no choice but to begin to embrace the open innovation model and use it to their advantage. Understanding your intellectual assets and being able to capitalize on them in order to generate more revenue must be an important part of managing IP and fostering innovation.

If you ask the owners of most companies whether they have any intellectual property assets, assuming they know what you are talking about, they are likely to say no.  The problem is that the answer should universally be a resounding YES!  Every company has intellectual property assets.  The name of your company is an asset that can be protected through state and federal trademark registration, and can generate good will, which is potentially the largest asset of any kind that many businesses will have.  Explained in this way many will at least acknowledge that intellectual property assets exist, but the one type of intellectual property that most businesses completely ignore is the trade secret.

It is hard to imagine that any business could ever operate without having protectable trade secrets.  The trouble is that most do not know what can be protected as a trade secret, nor do they know how to protect trade secrets.

A trade secret is defined as any business information that is valuable and that derives its value from remaining a secret.  So what information could be protected via trade secret?  Any information that you would not want a competitor to get their hands on could be a trade secret.

FOX News recently broke a news story relating to a rogue branch of the United Nations undertaking some kind of clandestine scheme that would ultimately wind up shipping computers and other technologies to the government of North Korea in violation of several UN Resolutions, including UN Security Council Resolutions 1718 and 1874.  As I sat there last night listening to the news I was shocked to hear Greta Van Susteren begin talking to John Bolten, the former United States Ambassador to the United Nations, about an allegedly little known UN agency called the World Intellectual Property Organization.  What?

The first thing that ran through my mind was how could they characterize WIPO being “obscure” and “little known”?  Of course, in the rest of the world no matter how large or important any agency or corporation that deals with intellectual property is rather obscure, which is a sad commentary in and of itself.  Then my thoughts immediately turned to disbelief.   How is this possible?  What were they thinking? The WIPO leaders I have met and communicated with seemed rather conservative and safe business people.  There has to be more to the story than they are helping out a radical and repressive regime obtain weapons of mass destruction.

Gene has asked me to write an executive summary that conveys the essence of my new book, The Software IP Detective’s Handbook: Measurement, Comparison, and Infringement Detection. While I definitely appreciate his request, I hope I’m not completely successful because that would mean that the two years of nights and weekends I spent writing the book, not to mention the years developing the mathematical algorithms and the methodologies described in the book, could have been done in a single evening.

I’ve personally been working as an expert witness in intellectual property disputes, specializing in software cases, for about 15 years. When I began working in this area, I found that most experts used a combination of off-the-shelf computer code analysis programs, home-grown analysis programs, and lots of long hours and late nights poring over lines of code. Some experts used tools available from universities that are called “software plagiarism detection tools” that produced dubious results even when they executed correctly. Expert reports were then written and rebutted. Arguments often got very technical and detailed and could easily confuse a non-technical judge or jury. Different experts often had different definitions of plagiarism or found different signs that they considered markers for copied code. Some parties to a litigation, and some experts they hired I’m sad to say, seemed to purposely cloud the issue to justify illicit or at least questionable behavior. I decided that a standard measure of software copying that could be objectively tested was needed, and so I developed code correlation.

As the second largest economy in the world, China is emerging to the center of the world’s economic stage. This emergence has been accompanied by constant changes in its legal and economic sectors. The intellectual property sector also has witnessed numerous recent changes. There have been significant new advances in China’s national innovation policies. New trends in Chinese patent filings have emerged. A growing number of Chinese companies are creating their own IP and increasingly filing infringement suits against foreign companies and their local competitors in China. China’s third patent law amendment has materially changed patent practice and procedures in that country.

These changes and trends will have profound impacts on foreign companies doing business in China, especially in intellectual property areas. What are the best ways to deal with these important changes? The following several considerations should be evaluated in determining a company’s patent strategies in China.  I will also discuss these and other considerations in my upcoming Practising Law Institute presentation IP in China: Strategies for Doing Business While Maximizing and Protecting Your IP, which will take place on Wednesday, November 16, 2011 from 1pm to 2pm ET.

On Friday, September 30, 2011, the University of New Hampshire School of Law unveiled its new Franklin Pierce Center for Intellectual Property, which is a new 12,000+ square-foot building located in Concord, New Hampshire. I was in attendance for the festivities, which included speeches, a dinner, a lifetime achievement award for Judge Pauline Newman and a Conference.

There is much to write about the event, but I will start my week long coverage with an overview of the event. As the week progresses I will delve into some interesting substantive discussions that took place over this Intellectual Property weekend in the Granite State, including: (1) Chief Judge Rader tell me during the Judges’ panel: “You aren’t making any sense…” (check back Tuesday afternoon 10/4/2011 for more on this); (2) Chief Judge Rader daring anyone to come up with proof that the Supreme Court’s decision in KSR did anything to change previous Federal Circuit case law on obviousness (I’ll take that challenge!); and (3) Jon Dudas, the former Under Secretary of Commerce for Intellectual Property, succinctly (and correctly) explaining that the funding of the United States Patent and Trademark Office is similar in ways to a Ponzi scheme.

While to many Franklin Pierce Law Center is not a household name, in the intellectual property world Franklin Pierce is indeed a brand name that has achieved lofty distinction as a result of the great successes of its alumni. However, Franklin Pierce Law Center is no more.  The small, independent law school located in Concord, New Hampshire, has affiliated with the University of New Hampshire, and well on its way to what will inevitably become a complete merger with UNH.  Already, the former FPLC is now the University of New Hampshire School of Law, but the unique spirit of Franklin Pierce has not been lost, and neither will the name be lost either.  The University of New Hampshire School of Law will formally open its new Franklin Pierce Center for Intellectual Property on September 30 and October 1 with an academic conference, panel discussions and a formal event attended by judges and legal scholars from across the country. 

It appears that “top 5” or “top 10” lists are quite popular here on IP Watchdog.  Allow me this opportunity to jump in with a list of my own.   Please enjoy, in no particular order, seven of the most common misconceptions about intellectual property.  Yes-seven.

 

1. Intellectual property is boring. My super grown up intellectual property attorney response to that is “NU-UH!”  But seriously.  Boring?  Really?  How could the Yoda patent, the Playboy Bunny, zombie video games, and the Coca Cola recipe be boring?  OK, the MPEP is a little dry, the TMEP isn’t exactly a page turner, and Title 17 reads like…well…a statute.  And maybe there won’t be a “Law and Order: Patent Transactions” this season on NBC, but the subject of IP is actually pretty interesting and we have some really fun case law. Think about it- intellectual property rights surround some of the most important aspects of our daily lives- from Apple’s patents to Coca-Cola’s trade secret to McDonald’s trademark to Michael Jackson’s copyrights.  I think the “boring” accusation stems from a tendency to focus on the underlying documentation that creates the right, as opposed to what the right is granted for.  This is like looking at the legal description in the deed to a house and relying only on that to make a decision whether to buy or not.  It’s the same with IP- the documentation may be highly technical, wordy, and confusing at times but look at what the document is for as opposed to what it says.  To prove my point, take a look at this patent.  Have a little listen to this trademark and try not beam from ear to ear.  And behold one of the coolest copyrighted works of all time. (Sorry- you’ll have sit through an advertisement before the video starts.  But you’ll be glad you did.)  Fun, innit?  If you want boring study Tax Law next time you’re waiting you’re in line at the DMV.

The search for innovative ideas has never been easy, but the advent of crowdsourcing technologies and powerful players willing to embrace new methodologies seems to be paying dividends.  Rather than rely on traditional innovation that comes from one individual or a small group of individuals or those working for or with a single entity or as part of a joint venture, crowdsourcing technologies take problems to millions of people and capture the most creative solutions, allowing them to be pursued and developed.  “Opening up the conversation and searching for solutions among a broad, but qualified, audience has allowed us to find unique, innovative ideas in a short period of time,” said Matthew Bishop, U.S. business editor and New York bureau chief for The Economist.

Indeed, just earlier today The Economist and InnoCentive, Inc. announced the winner of the Human Potential Index Challenge. Corrine Le Buhan, an IP and technology strategy consultant and valuation analyst from Lausanne, Switzerland, has won the Challenge, which was looking for new and creative metrics or indices that draw attention to an important societal trend.  Le Buhan’s solution proposed measurement of creativity and knowledge sharing via a “creative sharing” impact, described as the number of people reached by an original creative work as the creative work is spread, and possibly enriched, through further peer-to-peer interaction. This measurement could be used to compare various creative works and their impact on human development.

The Association of Intellectual Property Firms(AIPF) will hold its Annual Meeting September 18-20 in Chicago.  The theme of the event is “Enhancing IP Rights in a Time of Erosion,” which will be explored from a variety of perspectives.  Bruce J. Hendricks, Associate General Counsel, The Goodyear Tire & Rubber Company, will give the keynote address on Monday, September 19, 2011.  Other feature speakers include Philip S. Johnson, Chief Intellectual Property Counsel, Johnson & Johnson, Kurt Van Thomme, Pioneer Hi-Bred International Inc. and Clifton G. Green, Whirlpool Corporation, all of whom will be presenting their companies’ view on the importance of IP and outside counsel.

A diverse international faculty will focus on “Enhancing IP Rights in a Time of Erosion” and other innovative IP topics. AIPF will also offer its Brand of Excellence programming which will include topics like eLawyering, Mentoring, Legal Project Management and Social Media for the Attorney.  IPWatchdog’s own Renee Quinn, the Social Media Diva™, will present at 11:35am on Tuesday, September 20, 2011 on “Marketing, Brand Building and Social Media for the Attorney.” Renee will also be covering the AIPF Annual Meeting for IPWatchdog.com.

In its recent report entitled “The Evolving IP Marketplace,” the Federal Trade Commission (FTC) advances a far-reaching regulatory approach (Proposal) whose likely effect would be to distort the operation of the intellectual property (IP) marketplace in ways that will hamper the innovation and commercialization of new technologies. The gist of the FTC Proposal is to rely on highly non-standard and misguided definitions of economic terms of art such as “ex ante” and “hold-up,” while urging new inefficient rules for calculating damages for patent infringement.

To be sure, the FTC Proposal does not seek to confer upon the agency any direct power to set the price of licenses. But if implemented, the FTC Proposal would achieve that end through a long process that runs as follows. At the first step, the FTC Rules all suggest that the currently observed prices in licensing arrangements are too high, and should instead be set in accordance with the FTC’s own untested—but evidently unwise approach to “reasonable royalties” and “incremental damages,” which are nowhere observed in the extensive practice within the industry. So long as such new approaches are made available to potential licensees as of right, they will have a strong incentive to abandon the voluntary market in order to obtain the benefit of such judicial pricing rules that are systematically more favorable to their interests.

A few weeks ago, I took an afternoon Internet off-the-main-road cruise with the hope that a few unplanned detours would cure my midday highway hypnosis. The following item at Bloomberg.com caught my eye: Land Rover, NFL, Citadel: Intellectual Property.

Seeing those organizations lumped together piqued my interest: What could each have happening in the Intellectual Property domain that was significant enough to be blurb worthy?

Silly me. While the NFL and Citadel items were ho-hum (a clothing company nailed for selling unauthorized Steeler’s merchandise; Citadel Broadcasting using a copyrighted photo on its webpage), some of the other items made me feel sorry for people in the olden days (like me), who once had just had soap operas and gossip rags for entertainment.