The New Year is here and already in full swing for the most part, although it is now time to go back to work. Having Christmas and New Year’s Day on a Wednesday really caused the business world to go into a prolonged shutdown it seemed, with some people take time off early in the week, some later in the week, some the whole week. So now we are all back and ready to go!
It is that time of the year when reflections are made on the year that is about to pass, wishes are made for the new year, and a prediction or two start to pop from both amateur and professional prognosticators alike. Once again this year I thought I would ask some industry insiders to reflect upon the biggest moments in intellectual property for 2013. We will get to the hopes, wishes and maybe a prediction or two for 2014 next week.
In this edition of Biggest Moments in IP we have a variety of reflections on a wide array of IP issues. Todd Dickinson goes international by pointing to the EU Unitary Patent as a very important long-term milestone, and congratulates the USPTO on being ranked the top place to work in the federal government. Scott McKeownfocuses on a decision from the Federal Circuit that will allow collateral challenges to damage awards. Bob Stollpoints to the Innovation act, Federal Circuit disarray over software, the “revolutionary” Supreme Court decision in Myriad and the Microsoft/Motorola FRAND decision.
What follows is a portion of the written statement of Q. Todd Dickinson, Executive Director of the American Intellectual Property Law Association, republished here with permission. Mr. Dickinson testified today at the Senate Judiciary Committee hearing on “Protecting Small Businesses and Promoting Innovation by Limiting Patent Troll Abuse.” To read Mr. Dickinson’s full prepared statement please see Testimony of Q. Todd Dickinson.
Q. Todd Dickinson, Executive Director of the American Intellectual Property Law Association.
A recurring theme that can be traced through the patent reforms of the AIA to the current debate over patent litigation abuse is the issue of patent quality. A key component of the reported abuses is the assertion of allegedly invalid or overbroad patents, the very abuse for which AIA post-grant procedures were created, in order to improve patent quality. These matters of patent quality are being addressed by the changes made to the law by the Judiciary and by Congress in the AIA, which are only now beginning to be felt.4 It may well be premature to conclude that they are not doing the job.
Take one major example, as a former Director of the USPTO in particular, I would support, as former Director Kappos did, giving the post-grant processes in the USPTO a chance to work.
They have only been in place for less than two years, and in the case of PGR, less than one.5 Early data suggests that they are performing in many ways as Congress intended, at least at the macro level, to provide an efficient, less expensive means to address potentially low quality patents. We believe that the prudent course is to give these reforms the chance to demonstrate their efficacy to deal with the concerns for which they were created before we consider making significant additional changes which may have their own unintended consequences. In support of this proposition to wait and see how they are working, we would simply point out that the AIA itself requires that USPTO study the reforms implemented by the AIA and report back to Congress by September 16, 2015. Those reports would serve as an important and more empirically-driven body of data which would allow for greater clarity and direction in making any necessary changes.
Today I want to update you on the progress of our satellite offices in Dallas, Denver, and Silicon Valley, locations we identified in July 2012 as part of an America Invents Act (AIA) mandate. Given current budget constraints under sequestration, our efforts to move into permanent spaces for those three locations will be delayed, but continuing to operate from the temporary spaces and striving to grow our presence in the satellite office locations remains a top agency priority.
The USPTO is getting caught up in the sequestration budget battles despite the fact that the USPTO is fully user funded. As a result the USPTO stands to lose close to $150 million in Fiscal Year 2013, which runs through September 30, 2013.
There is a legislative proposal pending in Congress that would exempt the USPTO from sequestration, which was filed by the Members of Congress that represent Silicon Valley. See PATENT Jobs Act Seeks to Exempt USPTO from Sequestration. Silicon Valley would be the home to one of the new USPTO satellite offices if the agency had the money to open.
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.
On Monday the Intellectual Property Owners Education Foundation held its popular annual event simply titled PTO Day, which started early in the morning and ran throughout the day. PTO Day is, however, not the only event on the IPO calendar for December. After the close of the conference proceedings and as afternoon turns to evening a who’s who of the patent and innovation communities don black-ties (for the men) and elegant gowns (for the ladies).
One of the highlights of the year in such circles is the awarding of the National Inventor of the Year Award at a dinner ceremony in Washington, DC. This year the Awards Ceremony was hosted at the old Patent Office building, which today houses the Smithsonian American Art Museum and the National Portrait Gallery. If you have never been to this venue it is, in my opinion, one of the finest venues in all of Washington, DC for such an event. Of course, the fact that it was a first class, extraordinarily well done event only added to the evening. The meal was a fabulous shrimp appetizer, followed by filet mignon and an incredibly rich chocolate cake and ice cream for desert. The wine flowed throughout the evening, and everyone had a great time.
President Obama delivering State of the Union Address, January 2012.
You would have to be living under a rock not to know that President Barack Obama was reelected last night in what really can only be characterized as a resounding victory. While I went on the record endorsing Governor Mitt Romney, rather than feeling too bad, I at least have the reassurance that the U.S. patent system will remain in capable hands for the foreseeable future.
Even in my endorsement of Governor Romney I discussed that it is undeniable that the USPTO is run better now than at any time during the Bush Administration. So while the Republicans in the patent community are no doubt disappointed about the results of the election last night, the consolation prize is that the federal agency that handles matters in our little niche will be competently run moving forward. So there is a silver lining.
Of course, there have been rumors flying around that David Kappos will not remain at the USPTO for long even if President Obama did win reelection. No one knows for sure what will happen, and frankly who could blame Kappos if he decided that 4 years was enough and he wants to return to the private sector. Still, if and when Kappos would make a decision to return to the private sector I would be surprised. As far as I can see he remains the highly energetic, extremely motivated, dedicated servant of the patent system that he was when he first assumed the mantle of Director in August 2009.
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