It began typically enough: the Supreme Court denied cert in Athena, Chargepoint and Trading Technologies; Brexit finally happened; the Federal Circuit refused to rehear Arthrex; and the IP community was waiting for important rulings in copyright cases like Google v. Oracle and trademark cases like Booking.com. But then came COVID. Courts and offices shut down, the USPTO went almost 100% remote, and all conferences and events were cancelled into 2021. At the same time, pharmaceuticals, vaccines – and the IP around them – became the only thing on anyone’s mind.
My wife and I got COVID-19 at the end of March—no one knew anything about it yet, the science had just begun, and going to the doctor or hospital was not an option unless we couldn’t breathe. It was not the flu; I was very sick for a month, with strange symptoms lingering for much longer, but I’m incredibly grateful to be here and for the pharmaceutical companies and scientists that will save so many from ever having to experience this disease.
As usual, we asked the IP community what they are thankful for this year as well; here is what they had to say.
I Am Thankful….
Phil Johnson, Senior Vice President, IP Policy & Strategy, Johnson & Johnson (retired)
For the inventors, developers, funders and providers of tests, treatments and vaccines for COVID-19, and the tens of thousands of dedicated medical personnel and clinical test subjects who have taken significant personal risk to overcome this current pandemic.
For those who have put their self-interests aside to collaborate with their competitors to quickly and safely achieve an effective COVID-19 vaccine.
For those healthy people who have significantly changed how they work and live to stop the spread of COVID-19 to others, including those with co-morbidities, the elderly and others who are at higher risk.
For those in all fields who have dedicated themselves to improving the human condition, and our quality of life.
For those who nurture and serve all those mentioned above.
Efrat Kasznik, Foresight Valuation Group
In a year like 2020, when one is just thankful for being alive, healthy and busy, it seems like we have all gone back to the basics which have been taken for granted to too long. When is the last time you shook someone’s hand or just had a friendly gathering with your colleagues, not through a computer screen? Somewhere around March, 2020, it seems like most of us working professionals have descended down Maslow’s hierarchy of needs from the highest “self-actualization” tier down to the basic tiers of “physiological needs” and “safety needs”. This year, more than ever, we needed stories of inspiration and hope, and for me the IP ray of hope has been the 40th Anniversary of the Bayh-Dole Act. On so many levels, this is really the one thing we should have all been thankful for since 1980. In a year of a pandemic, the full benefits of technology transfer have become apparent with new vaccines, new treatments, and new diagnostics that emerged from U.S. research institutions. Also, in this election year, Bayh-Dole is a reminder of bipartisanship at its best, and how uniting forces in bringing innovation to market works for the betterment of humanity. Happy Thanksgiving!
Sherry Knowles, Knowles Intellectual Property Strategies
Given the distractions of COVID19 and the 2020 elections this year, it is not surprising we did not give proper due to a huge anniversary-the signing of the Mayflower Compact on November 21, 1620 and the landing of the Pilgrims at Plymouth Rock December 26, 1620! I am grateful to the courageous Pilgrims who started from the Nottinghamshire village of Scrooby, England, united by purpose and spirit, passing through Leiden, Netherlands for their dangerous voyage to start this great experiment in democracy. They were fierce! Like many Americans, my roots go back to those Pilgrims. My great-grandmother was Abigail Grace Brewster, a proud descendant of William Brewster, one of the Pilgrim Leaders. What a rebel! I am grateful for him.
Those Pilgrims had to work together as a group to survive despite their strong disagreements. The Mayflower Compact was born of necessity– and historic as a first in western consensual government. Not perfect-no females signed it and it was a product of its time in history. Instead of thinking about these COVID spikes, protests, dissension, all time high in media bias and the balance of power in Congress, why don’t we distract ourselves for a moment and reread part of the Mayflower Compact to:
Covenant and combine ourselves together into a civil body politic, for our better ordering, preservation and furtherance of these ends and by virtue hereof to enact, constitute and frame such just and equal laws, ordinances, Acts, constitutions and offices, from time to time as shall be thought most meete and convenient for the general good of the Colony, unto which we promise all due submission and obedience.
Democracy is a permanent series of experiments. Sometimes experiments work and sometimes they fail along the way. We haven’t been as inclusive or understanding as we should have been as a group. This great experiment in democracy did, however, create the Constitutional framework to innovate beyond our wildest dreams, and enjoy the increase in quality of life that comes with great innovation. That framework of laws has to be defended, not ignored when convenient. We have also seen a lot of ugliness this year and could use some practice working on that “civil body politic” (emphasis on civil) aspect. And we will not fix our laws on patent eligibility without some consensus. While we are isolating this Thanksgiving, let’s think about the Mayflower Compact and how to work better together when we are lucky and grateful enough to be able to—out of necessity!
Stephen Kunin, Maier & Maier PLLC
We should continue to be grateful for Director Andrei Iancu’s leadership and stewardship of the USPTO during these trying times caused by the adverse impacts of COVID-19. With his strong leadership, the USPTO has continued to provide vital services to the patent and trademark user communities. His outreach efforts have been well received and the USPTO has been open-minded and responsive to public feedback on how it can make continuous quality improvements to its services and products. Kudos as well to all the USPTO employees who have had to adapt to more extensive telework while striving to maintain continuity of operations.
Daryl Lim, Professor of Law and Director, Center for Intellectual Property, Information & Privacy Law, UIC John Marshall Law School
For progress on what we know about the law’s take on artificial intelligence and what we don’t.
Artificial intelligence (AI) is less of a legal “black box” than it was a year ago. We have a better idea today of where the U.S., China, and Europe stand on issues such as inventorship, authorship, and ownership. The general approach is expectedly conservative, preferring to lean on familiar human-centric notions like “conception,” “originality,” and corporate ownership than to deal with increasingly common instances when human play an uncomfortably diminished role in the actual creative or inventive process.
We know the “black box” nature of AI algorithms and their functional interchangeability make it challenging to locate prior art, that examiners may be less likely to identify and cite sources of prior art that are more difficult to find, that biotech inventions can inform how we approach sufficiency of disclosure AI inventions, that at least one Chinese court has relied on a “work for hire”-like doctrine to resolve copyright ownership, and that European rules on privacy as well as its restrictions on text and data mining will likely make countries with friendlier rules like the U.S., China, and Singapore more attractive for investors.
We don’t know if we need to expand nonobviousness’ analogous arts doctrine or rethink the notional skilled artisan judging nonobviousness to account for the capabilities of inventive AI, or how to go about doing so. We don’t know if we eventually still need trademarks as heuristics when AI butlers can comprehensively scour the marketplace with little regard for the distinctiveness of a trademark, or if we no longer need trademarks to protect consumers from confusion.
We do know the winners in this new legal terrain will be the ones: 1) with clearly defined safe harbors, regulatory sandboxes, and blacklists; 2) with ethical and balanced rules that allow big and small entities on the value chain to grow and prosper; and 3) who pragmatically collaborate with like-minded partners to standardize these norms across the markets that matter to them.
Gene Quinn, President and CEO, IPWatchdog, Inc.
Not to put too fine a point on it, but I am thankful that 2020 will soon come to an end. This year has been a most turbulent one, from the COVID-19 pandemic, to widespread riots in American cities, to the most acrimonious election America has had for many years. Too many small businesses of all sorts won’t survive 2020, but despite all the turbulence, there are signs we will have a better 2021. So, I am thankful that the legal and policy groundwork laid over so many years has enabled innovators to realize the monumental achievement of a safe and effective vaccine that is expected to be widely available by the beginning of Q2 2021, and available for seniors and frontline emergency workers starting by the end of 2020. I am also thankful that over the last six months we have seen decisions in the most highly anticipated cases — FTC v. Qualcomm, Unwired Planet and Sisvel, to name a few — be decided in favor of the innovator.
Jonathan Stroud, Unified Patents
I am grateful and thankful to work in a profession and among professionals who are so understanding, who make working virtually in a difficult time with small children at home so seamless, and where collegiality and civility tend to reign still, even amid the heated rhetoric and an increasingly polarized society. I’m also thankful that in patent law, decisions are generally made based on hard evidence and data rather than vague policy narrative and base plays to emotion. Objectivity is in short supply these days, and being able to trust that our colleagues and friends are considering all of the available evidence and respecting differences in belief divorced from personal animosity is, to the Midwesterner in me, comforting.
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