“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.
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.
Entering into a corporate transaction without a careful review of the intellectual property (IP) involved can have negative consequences on an enterprise’s future IP strategy. This is especially true when IP owners do not adequately supervise the corporate attorneys who are preparing the “customary” documents for a merger, acquisition, joint venture formation, equity investment, bridge loan or any other type of corporate transaction. Such adequate supervision involves a careful review of the “deal docs” for IP issues. Why? Because the corporate attorneys may often not appreciate or be aware of the unintended consequences of the language typically employed in such corporate transactional agreements, an IP-focused review is prudent to avoid such unintended consequences.
Invariably, a part of drafting (and negotiating) the deal docs involves preparing one or more IP-related schedules. That is, the specific patents, trademarks, copyrights, trade secrets, know-how and/or software involved in a transaction will be listed in one or more schedules. These schedules are then referred to in the transaction (i.e., “main”) agreement as the IP being licensed, acquired, divested, pledged, contributed or exempted – depending, of course, on the particular transaction.
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.
Media research company Nielsen Holdings N.V. has agreed to settle Federal Trade Commission charges that its proposed acquisition of Arbitron Inc. may substantially lessen competition. Nielsen will divest and license assets and intellectual property needed to develop national syndicated cross-platform audience measurement services.
Nielsen and Arbitron are developing national syndicated cross-platform audience measurement services, which allow audiences to be measured accurately across multiple platforms, such as TV and online. According to the FTC’s complaint, the elimination of future competition between Nielsen and Arbitron would likely cause advertisers, ad agencies, and programmers to pay more for national syndicated cross-platform audience measurement services.
“Effective merger enforcement requires that we look carefully at likely competitive effects that may be just around the corner,” said FTC Chairwoman Edith Ramirez. “In this matter, the evidence provided us with a strong reason to believe that absent a remedy, the deal was likely to harm emerging competition in the area of cross-platform audience measurement.”
Critics argue that pharmaceutical patents are a barrier to wide-reaching access to medicines, especially for vulnerable populations in the developing world. They cast their argument in the phrase, “Patents Kill” and advocate against intellectual property (IP) protection for medical innovation and the trade agreements that incorporate them. Their position, however, begs the question of what truly influences a population’s access to medicines. This week, as the United States and a dozen other nations continue the Trans-Pacific Partnership (TPP) Agreement negotiations, the answer is more important than ever. Despite the critics’ position, recent students cast doubt on their argument, providing evidence that access is critically linked to a country’s level of economic development which is enhanced by strong intellectual property rights protection.
Access is defined as “having medicines continuously available and affordable at public or private health facilities or medicine outlets that are within one hour’s walk from the homes of the population” (United Nations Development Group, 2003). Fundamentally, access is largely continent upon the nation’s level of economic development and available infrastructure. Given this, there are two important reasons to believe that the TPP will not inhibit access to medicine. First, most would-be signatory nations are well developed. Second, trade and IP protection enhance growth and growth furthers access.
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.
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).
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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