This year has included many twists and turns for IP stakeholders, particularly on the patent side. Most recently, the Federal Circuit’s decision in Arthrex has called into question the constitutionality of Patent Trial and Appeal Board decisions, and perhaps the Board itself. Elsewhere, Congress has been—unsuccessfully—attempting to step in and clarify U.S. patent law since early in the year, while the courts have continued to muddy the waters of patent eligibility law. The Federal Trade Commission’s case against Qualcomm, and Judge Lucy Koh’s decision, have further called into question the United States’ ability to compete on the innovation front going forward. And yet, there have been some wins in other areas this year, including at the U.S. Patent and Trademark Office (USPTO), and there remain many reasons to be hopeful about the year ahead.
IPWatchdog asked some experts to share what they have to be thankful for on the IP front this Thanksgiving, despite all the uncertainty. Hopefully, as those of you who celebrate the holiday enjoy your Thanksgiving dinners, these sentiments will inspire you to be thankful too.
I Am Thankful….
For a Free Press, China’s Progress on IP, and the CASE Act
Principal, Brody Berman Associates
I am thankful for a (still) free press and internet that permits reporting—even if it sometimes encourages “fake” news and abuses our personal data—discussion and debate about IP rights. I am thankful that the European Union gets it, even if the United States does not, regarding aspects of IP and privacy. I am thankful that China is at least saying the right things about respect for IP rights and need for better education, even if it does not always practice them. And I am thankful that bills like the CASE Act, establishing a small claims court for copyrights, can warrant unanimous bipartisan support in the House (410-6) and Senate Judiciary Committee (passed without amendments).
That IP is More Relevant Than Ever
Dean and Professor of Law, University of New Hampshire, Franklin Pierce School of Law
I am thankful that many of the most important questions facing our world right now are questions of intellectual property, and the IP community is an important voice in shaping the answers to these questions. IP education is more important than ever, both in the United States and globally. While we are experiencing a measure of uncertainty in the IP system and challenges to our conventional understanding of IP, it is clear that legal frameworks surrounding human creativity and invention are more relevant than ever—and their evolution is connected to fundamental questions of innovation, business strategy, and social justice. None of us in the IP community loves what we do because we like things to stay the same. And right now, perhaps more than ever, we have the opportunity (and responsibility) to help shape the answers to questions of global importance, to impact policy and practice, and to drive innovation.
For Andrei Iancu, Judge Paul Michel, Senate Leadership, and James Madison
Senior Partner, Polsinelli and Former USPTO Director
I am very thankful for the gifted leadership we have at the USPTO at this critical time. Knowing Director Andrei Iancu since before he began his government service, I was pretty sure he was going to make an excellent Director. He has exceeded even my lofty expectations. A firm and forward-looking grip on management, an encyclopedic knowledge of the subject matter, and an impeccable temperament for the job, Andrei is just what we need now at the USPTO more than ever.
In that same vein of leadership, I am also very thankful that we have two great Senators, Thom Tillis and Chris Coons, who have taken such a strong interest in a such a relatively esoteric issue as patent law. They are working together, in a bipartisan way, along with a very talented and hard-working staff, to try and solve one of the most challenging and intractable problems in patent law today: fixing the Supreme Court’s incomprehensible jurisprudence regarding patent eligibility, Section 101 of the Patent Act. It won’t be an easy or quickly-achieved accomplishment, but the longest journey begins with a single step, and Messrs. Tillis and Coons and their teams have gone many more than a few steps towards reaching that goal. They should be commended for it.
Partner, Maier & Maier PLLC
We should be thankful for the leadership and direction that Andrei Iancu has provided at the USPTO, particularly in the issuance of the 2019 Revised Patent Subject Matter Eligibility Guidance, together with the October update, as well as his efforts to obtain guidance from the public in the area of patenting issues arising from artificial intelligence. His formation of the Precedential Opinion Panel and efforts to revamp AIA trial practice should be applauded. We all should recognize the efforts of former Chief Judge Paul Michel for his tireless work in promoting solutions to problems in the areas of patent law that are sorely in need of reform in the United States. Perhaps the amici briefs in the Athena case will have a favorable impact on the Supreme Court’s treatment of patent subject matter eligibility in a time when Congressional efforts have stalled.
Founder and Partner, Dowd Scheffel PLLC
As lawyers, it’s easy for us to focus on the negatives. But, during this time of year, we shouldn’t lose sight of what we’re thankful for. And despite the legal turmoil in the patent field, there is still much to be grateful for. From a first-principles level, James Madison should be thanked for his foresight to include the Intellectual Property Clause—Article I, Section 8, Clause 8—in the U.S. Constitution. Without that, it’s quite likely that U.S. innovation would not have been as great as it’s been. Yes, inventors would still invent, and artists would still create, but the reward system and incentives would be totally different without the Patent and Copyright Clauses.
There will always be room for debate about the “correct” level of patent protection. Are patents too easy to obtain, or are they too easily cancelled during administrative hearings? What is the best length for the term of a patent? Does broad patent protection for groundbreaking inventions “promote the progress of the useful arts,” or should claims be more narrowly tailored to the work actually performed by an inventor? Should software inventions be protected by copyright or patent? Copyright protection faces similar questions.
These and others can be challenging questions, without easy answers. That is why I’m thankful that the intellectual property community comprises some of the best professional minds available today—including inventors, attorneys, and judges. And it is also why it is incumbent on the IP community to work together to fulfill Madison’s belief that “the utility of [the Intellectual Property Clause] will scarcely be questioned.”
For Strong IP Association Leadership
Partner, The American Continental Group
I am delighted that Intellectual Property Owners Association (IPO) will continue its pursuit of excellence in the promotion of intellectual property under the leadership of Jessica Landacre as the new Executive Director. Landacre understands how to foster excellence in advocacy and to spread the message that in order to spur innovation and economic growth, we need to provide innovators with the protection and certainty they need to raise capital, build their businesses and bring their products and services to the marketplace. Landacre’s career and accomplishments are founded on a steadfast commitment to promoting intellectual property and supporting her colleagues at IPO and throughout the innovation ecosystem. With Landacre at the helm, I am confident that IPO will be able to weather any storms that befall the innovation community and steer its members on a path to success.
For the Inventors and Front-Line Storytellers
Founder & Managing Principal, Soryn IP Group, LLC
Three-and-a-half years ago I left the partnership at a fancy law firm and got into the patent litigation finance business because there was a clear need. Certain swaths of industry, knowing the America Invents Act (AIA) provided them with so many advantages, made what seems to have been a calculated decision to take the patented technology of “smaller” companies without regard for the consequences. Often, the fact pattern is the same: innovator is contacted by a behemoth in the space, with promises of a Tier 1 partnership. Nondisclosure Agreements are signed, engineers spend months together and then one day behemoth goes quiet, only to launch an eerily similar product months later. “Unless you sue us, we won’t even talk to you” the innovators are told (ironically by many of the same companies that bemoan in the press how often they are sued for patent infringement). Years of investment and entrepreneurship are destroyed in a matter of months
This scenario plays out countless times every year to the significant detriment of so many innovators in the United States who feel they have no choice but to take that meeting. And in so many other circumstances, the larger entity, possessing every economic and marketing advantage, simply takes the technology because it makes business sense.
And so, this Thanksgiving, I am most thankful for those on the front lines telling the real story of how our patent system has failed so many U.S. innovators. The patent troll narrative has been so successfully fed to the press, Congress and its staffers, that sometimes it seems as though there is no hope. But thanks to those fighting for our innovators—Judge Paul Michel, Senators Tillis and Coons, and Josh Malone, to name a few—the flame of innovation may stay lit after all. And hopefully those in power are starting to listen.
President, Foresight Valuation Group
It is sometimes hard to see the forest for the trees, and with the constant bombardment of stories focused on adverse patent-related developments in the United States, it is easy to forget that innovations start with people and their ideas, and as long as there is innovation, good things will follow. On the occasion of Thanksgiving 2019, I wanted to celebrate a year of innovation and thank U.S. inventors, who can be found anywhere in this country. I actually wanted to give a shout-out to the people of the state of Florida—a state that may not conjure images of invention labs and startup garages, as does Silicon Valley (where I am located), but yet is a place that has yielded many brilliant innovations from inventors that I have had the pleasure to interact with over the years. This year stands out for me for one of our IP valuation clients, a Florida-based company that has managed to leverage its patent portfolio to increase its valuation and obtain better results in a sale of the company. This company epitomizes the American story: it started as a service company for telecommunications infrastructure following one of the many hurricanes that hit Florida, has subsequently found global success with installations all over the world, and in the process also managed to develop an antenna monitoring novel process and had the foresight to create a global patent portfolio around it. The innovations underlying the patents ended up having wide applications in 5G networks, which led to the IP portfolio being particularly valuable for potential buyers. This is a story of IP strategy increasing business success, which is a great testament to how the patent system serves its constituents. Happy Thanksgiving!
Partner, Berenato & White
I am thankful for US Inventor and Josh Malone et al. for being the voice of conscience of the patent system! It is sorely needed, and they do an outstanding job. More folks need to listen to them; the system needs saving. Go Team Inventor!
For the Legacy of Donald Dunner
Professor of Law and Director, Center for Intellectual Property, Information & Privacy Law, UIC John Marshall Law School
Donald Dunner has a reputation unsurpassed in the patent world. When he passed away in October this year, IPWatchdog was one of the first notable media outlets to break the news. In a heartfelt tribute, its founder Gene Quinn described Don as “a true icon in the field of patent law” and remembered he “always had a grace and elegance that set him apart.” That same week, IPWatchdog featured Don in a second article, chronicling his professional journey and his many contributions to the IP community.
Don joined our advisory board in 2015 and served as its chair. Don exemplified intellectual honesty, professional excellence, inquisitiveness, integrity, and collegiality. Together with others, we established John Marshall as a destination for the IP world to gather and learn from each other. Students had front row access to newsmakers. Government officials and judges had a platform to frankly share their insights and get timely feedback. Attorneys, in-house counsel, and interest groups from across the country and around the world mingled, and new partnerships were born.
Don’s work is done. Now he belongs to the ages. Those seeking his legacy will find it in institutions like the Federal Circuit and in many lives he touched. At a time when some are fearful about the future of the U.S. patent system, let us pause and consider how Don and the best of his generation forged through numerous obstacles to help set the nation on the course for decades of innovation, growth, and prosperity. We now hold that patent system in our hands. We do so both as beneficiaries of those who have gone before us and as trustees for those yet to come. May history remember our part in it as favorably as it will surely remember Don’s.
That the Conversation is Beginning to Change
Founder and former President, US Inventor, Inc.
The destruction of the patent system has been on the march for over a decade. Thinking back, the early sorties filled the air with wildly false stories of patent trolls feasting on mom and pops and eating our nation’s innovation engine. The stories concluded that we must send patent trolls to a “special place in hell reserved just for them.” Back then, most Washington lawmakers and staff believed in fairy tales. Unfortunately, radical and extreme changes by all three branches of government were made to virtually every aspect of obtaining, maintaining and defending patent rights. These fundamental changes had the effect of sending imaginary patent trolls to that “special place in hell,” but unfortunately, because the government does not understand even basic economics, they sent the rest of us there too. We are left with a destroyed patent system and a gutted national innovation engine—and all of this because of a cartoon. Startups and their emerging technologies are fleeing overseas to real-world places like China and Europe.
While I am not thankful that we are in this position, I am thankful that the last year has softened hardliners in Congress, who are beginning to understand the damage that they brought on all of us and themselves. The conversation has changed. I am thankful that those using the pejorative epithet “patent troll” are now understood to be the patent pirates and thieves that they actually are. I am thankful that the destructive and undefinable abstract idea under Section 101 has shown its gnarly face even though big tech big bucks shelled out to Senators on the Judiciary Committee caused its fix to stall. Next year will reveal that even more innovation has fled the United States to other countries, and these Senators will not be able to trade their dignity and honor for campaign cash and they will pass the right fix. I am thankful that the Federal Circuit found PTAB “judges” to be unconstitutionally appointed, and I am now hopeful many will be rightly fired.
That the USPTO is Still Open, and Europe is Picking Up the Slack
Founder and CEO, IPWatchdog, Inc.
As I’ve contemplated what to write for several weeks now, the first thought that keeps coming to mind is simply this: I’m at least thankful that the doors to the USPTO haven’t been shuttered– yet. The utter disarray of the U.S. patent system is mystifying. Renewed Federal Circuit attempts to find everything of commercial value to either be abstract or a natural law, or simply unpatentable because it is useful as a medical diagnostic, are confounding. The inability of Congress to do anything to stop the patent system from becoming irrelevant is maddening. The Supreme Court—well, they are responsible for much of the problem and have eschewed opportunities to fix the patent system at every turn. So, I guess what I’m really thankful for is Director Andrei Iancu’s leadership during these difficult, trying and historic times. At least the USPTO remains open for business on the front end.
I’m also thankful that the European Patent Office is increasingly stepping into the void left by the United States. Just recently, I had the opportunity to speak at a conference for high growth SMEs in Dublin, Ireland. It was impossible not to notice the role reversal. It is like looking at a mirror. As the U.S. patent system wanes, the European patent system gains. Europe understands the importance of patents to SMEs and has recently unveiled a report explaining just how and why SMEs use patents—for funding, to establish partnerships, to drive revenues. So, I am thankful that startups, universities and SMEs have a place to go to grow the technologies of the future in an environment that appreciates their vital role to the innovation ecosystem, even if that isn’t America.
For the Patent Bar
Chief IP Counsel Unified Patents
I’m thankful for the civility, good character, and level-headedness of the many fine patent practitioners I have practiced alongside of, or have been opposed to. Our little patent nerdy community has its quirks and its flaws, but for my money there isn’t a more collegial, intelligent, or generous bar out there.
In one example I can think of, opposing counsel was at deadline and emailed asking for an extension, citing the death of his father. No one hesitated—of course. We gave more than he asked. I lost my father young; there are some things that trump winning or eking out an advantage. Another time, I was in another time zone and missed a deadline by a few minutes. I fell on my sword, and the lawyers on the other side—who I know well and respect—agreed to extend it quickly. Sure, there are jerks out there. But it’s moments like that that give me hope.
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