It’s been another challenging year. At the end of 2020, we were all hopeful that 2021 would bring with it a chance to get back to normal, but that has so far eluded most of the world. However, the year did bring with it a lot to be grateful for—the various COVID-19 vaccines, made possible by science and arguably made viable by intellectual property rights—were initially rolled out in the United States beginning in late 2020 and became available to the masses in the spring of 2021. Today, about 60% of the U.S. population is fully vaccinated, and there would be many hundreds of thousands more deaths without the vaccines. IPWatchdog was able to have its first annual LIVE! event as a result of the vaccines as well, and it was a huge success. I’m very thankful to be part of such a great team and to have such truly genuine and wonderful bosses in Gene and Renée.
Below are responses to our request for comments on what the IP community is thankful for this year. If you’d like to be added to our mailing list for these perspective pieces, please write us at firstname.lastname@example.org.
Happy Thanksgiving all!
David H. Bernstein, Debevoise & Plimpton LLP
I’m thankful that the Trademark Modernization Act has restored the critically-important presumption of irreparable harm in trademark and advertising cases, and that it will soon be fully implemented to give brand owners and the Trademark Office a new tool to expunge overly-broad and abandoned registrations from the trademark registry. But there is much work to be done in the new year, including passage of the Shop Safe Act in order to provide a safe environment for online shopping, and seeking a new balance in the courts’ application of the functionality and the First Amendment defenses in trademark cases.
Zack Cleary, Polsinelli
Law firms sometimes get a bad rap for being competitive, profit-driven, and even ruthless enterprises. But when a catastrophe unheard of since the Spanish flu struck and the world came to a standstill, it highlighted how my firm is different. “We’re a family and we’ll get through this together,” was the mantra at my firm. The focus was on the people. Flexibility and understanding of personal circumstances were the firm pillars. While we created new strategies to deal with this unprecedented event, taking care of our attorneys and staff were priority number one. Calls to check in on each other’s wellbeing were scheduled. Billing commitments were paused or, in some circumstances, ignored. We changed. Or maybe we didn’t, and the extreme circumstances merely shined a light on the extreme generosity and kindness within my colleagues and our executive team. Either way, 2021 showed me the human side of the corporate world, and for that, I’m thankful.
Matthew Dowd, Dowd Scheffel PLLC
Despite the continuing COVID conundrum, we have so much to be thankful for. We witnessed the development, at unprecedented speed, of groundbreaking vaccines and treatments. Vaccines are improving outcomes, and new antiviral drugs and other medicines will help those who become sick.
If we collectively pause for a moment—and put aside the noise—it is simply breathtaking to contemplate how absolutely amazing these developments are. It wasn’t all that long ago when the U.S. was ravaged by the polio epidemic. My mother reminds me of what it was like and how almost everyone saw the vaccine as a savior—which in large part it was. For another perspective, my father, born in rural Ireland, reminds me that access to basic healthcare at the time was limited, to say the least. Seeing the dentist meant a once-yearly tooth pulling (sans anesthesia) when the dentist travelled to town.
Medicine and healthcare have greatly improved our society and our lives, and intellectual property—particularly the exclusive right granted by a patent—has been vital to that improvement. As we enter 2022, I hope we witness even more improvements fostered and incentivized by a robust patent system. And I thank all those advocating for the continued success of creative innovators.
Taryn Elliot, Polsinelli
As weird and specific as it may seem, I’m thankful for design patents. One of my favorite parts of my job is helping people protect what they create. As the past 18 months accelerated the transition from brick and mortar to online sales and marketing, the competitive landscape quickly changed. Floods of online counterfeits and knockoffs threatened to hurt businesses at an already difficult time. Design patents proved to be a unique tool in addressing counterfeits and knockoffs in this emerging landscape. Helping people succeed and feel the success of their innovation is something I will always be thankful for, and design patents, which remain an undervalued tool, saved the day for many businesses.
Marla Grossman, American Continental Group
The retirement announcement from Senator Patrick Leahy (D-VT), the longest-serving member in the U.S. Senate, makes it appropriate to acknowledge the profound and beneficial influence that the Senator has had on U.S. innovation and creativity. As intellectual property law has grown more legally complex and economically important in recent years, Senator Leahy has met the challenge of sorting through the many competing equities that comprise the public good. He has tackled tough questions such as how best to promote the progress of science and useful arts by securing, for inventors and creators the exclusive, but time limited right to their respective creations and discoveries. He has used his influence to help ensure a robust intellectual property marketplace that works for both creators and end users. Like the USPTO and the U.S. Copyright Office, Senator Leahy has been an IP institution in his own right. It is difficult to imagine the future IP landscape without his leadership, but it is easy to appreciate his legacy of supporting innovators and creators in this country. An intelligent and honorable person, he has served his country and state exceedingly well.
Jeff Hardin, Entrepreneur, Business Owner, and Independent Inventor
I appreciate the reminder of Thanksgiving, where we all can put on the glasses of appreciation and see the world through the spectacles of gratitude. There is much to be thankful for.
First, I’m thankful for Gene, Renee, Eileen, Steve, and the many others at IPWatchdog I either met during, or who helped make possible, IPWatchdog LIVE 2021! Physically being in one place to converse with top minds in the ever-changing patent waters (and without PowerPoint distractions) was an absolute delight.
Third, I’m thankful that our government acknowledges the need to help underrepresented inventors, and I’m hopeful that they will focus on the true problem underrepresented inventors have identified.
Finally, I’m thankful to see a change occurring in rhetoric toward patent owners, and how Inventors continue to speak the truth and petition their government for a return to strong inventor rights. And while I’m not thankful for bad policy in the least, I’m at least thankful that I live in a nation where laws can be changed by the People, and that some in the Congress are beginning to take seriously the real stories experienced by Inventors as a result of unintended consequences.
Payton Hashemi, Polsinelli
With increased reliance on technology due to recent challenges, I am grateful for participating in a profession that encourages technological advancement by protecting IP rights. I’m thankful for having the opportunity to help innovators obtain a patent that recognizes the value of their hard work and gives them the motivation to continue their innovation efforts. My sense of satisfaction stems from my belief in technology’s key role in solving many of today’s challenges and improving the lives of many, especially considering the current circumstances. Given my fascination with technology, I am grateful for each opportunity to speak with inventors who are enthusiastic about their inventions and be part of the process of obtaining a patent on their ideas. Technological advancements have been instrumental in providing opportunities for folks to stay in touch and spend more time with their loved ones by allowing many to work virtually. I am incredibly thankful for being part of an industry where working remotely is possible and effortless, allowing many to spend more time with their family, which I believe is the most important part of life.
Brian King, Clarivate
This year as families gather for the holidays, I am thankful for the innovative COVID-19 vaccines which allow us to gather safely, as well as the people and institutions that deserve untold gratitude for bringing them to bear. Among them, I am thankful for my Clarivate colleagues – many of them women in science – for the part they played in this herculean effort.
At a basic level, I’m thankful for IP laws that protect and reward authors and inventors for their societal contributions which make all our lives richer. I’m grateful for the trademark system and it protects consumers, as well as the private actors and law enforcement agencies who work so hard to utilize the power of trademarks to keep consumers safe. I’m thankful for the multistakeholder internet governance model and my ICANN colleagues who work so hard to ensure it delivers for all stakeholders. Especially in 2021, I’m thankful for the technological miracle that is the internet, and I acknowledge how much worse the COVID-19 pandemic would be, had it happened just 20 years ago.
I’m thankful that here in the US we have new leaders at the USPTO and NTIA already hard at work to protect and improve our cherished patent, trademark, telecommunication, and domain name systems, and I’m grateful for their staff who make it all happen. Finally, I’m grateful for all my industry colleagues, both when we make each other better through competition, and more often when we can collaborate on policy outcomes to serve the greater good. Happy Thanksgiving!
Anne Elise Herold Li, Crowell & Moring
Like so many others in 2021, I am eternally grateful for the scientists, researchers, manufacturers, regulators, distributors, truck drivers, doctors, nurses, pharmacists, and so many others who managed to get a vaccine developed, reviewed, approved, distributed, and injected into people in record time. I wept with joy as I, my family, my children, and our community got shots to keep us safe, keep us alive. I danced with joy as the children gleefully returned to full-time in-person school for the first time in eighteen months. Science is amazing and ever-changing. Patent law is trying to keep up, as demonstrated by this year’s Kite v. Juno case. To get a monopoly, the patentee has to teach the public about the full scope of its claims. The Federal Circuit clarified what that was – that it had to be more than just a couple of examples of a genus of antibodies with a binding affinity that would results in millions of billions of possibilities. Inventors get to patent what they discover, but cannot preempt the entire field of life-saving research. This is something to be grateful for.
Daryl Lim, Center for Intellectual Property, Information & Privacy Law, UIC School of Law
I am thankful for a rare consensus between pharma and tech – that patents rules governing artificial intelligence are sound. The George Mason University Antonin Scalia Law School’s Center for Intellectual Property x Innovation Policy’s Virtual 2021 Annual Fall Conference focused on the interface between artificial intelligence (AI) and intellectual property. Panelists from biopharma companies like Novartis and Genentech on one panel, and from Google on another, shared the view that current patent rules supported AI innovation. These two industries have vastly different business models and deeply divided views on patent law and policy. Those views had stumped patent eligibility reform. Had either side been dissatisfied with the status quo on AI, they could have lauded developments elsewhere, including recent ones in South Africa and Australia, as pointing the way forward here in the United States. Notably, they did not. Industry consensus gives the government guidance and the time and space to consult widely, as the U.S. Patent and Trademark Office has done on AI, and to make balanced and carefully considered adjustments where needed. That is as it should be.
Steve Kunin, Maier & Maier
We should be thankful for Drew Hirshfeld’s stewardship of the USPTO following Andrei Iancu’s departure. He has done a yeoman’s job of keeping the USPTO moving forward during a period of transition in the Administration. We should also be thankful for the continued leadership shown by Dave Kappos, Andre Iancu and Paul Michel in promoting and advocating pro-intellectual Property policies during a turbulent period of change. Finally, we should be thankful for the nomination of Kathi Vidal to be the next political leader of the USPTO. Hopefully, she will be confirmed by the Senate in the coming months.
Gene Quinn, IPWatchdog
I spend so much of my time opining on issues where it feels like the sky is literally falling from the viewpoint of patent owners, and trademark owners plagued by counterfeits selling via online platforms or individuals and small businesses being harassed by copyright trolls. It is easy to become jaded. But recently I was happy to see that the Federal Circuit decided in SRI v. Cisco that the court did not intend to create a heightened test for proving willful infringement. If you know you are infringing it turns out that you are a willful infringer, which means the game of efficient infringement may require recalibration to contemplate the possibility that treble damages could be the result. So, perhaps an easier path to a finding of willfulness levels the playing field a little even though a patent owner no longer possesses the right to exclude.
Of course, I’m also thankful for having the best team in IP – Eileen, Kasia and Jess – and for having the best wife and business partner – Renée. And very thankful for successfully hosting IPWatchdog LIVE after many failed attempts due to COVID-19. Thank you to everyone who attended! See you at LIVE 2022 in September!
Matteo Sabattini, Ericsson
This year has been another challenging one. While we all long to return to normal human interactions, some things will never be the same, and the use of technology we all relied upon in the past two years is here to stay. Another that seems like it’s here to stay is the problem of hold-out. Some courts, especially in Europe, have acknowledged this problem. Unfortunately, there is still too much emphasis on hold up, especially by policy makers, despite the data showing otherwise. Incentives to take a license are somewhat limited – monetary damages are not sufficient, patents are not self-enforcing, unwilling licensees often pay no more than the FRAND rate even after years of litigation. This creates an unlevel playing field during negotiations, and it encourages opportunistic behavior by unwilling licensees, behavior sometimes referred to as efficient infringement. Having said this, the IP industry has proven extremely resilient during the pandemic, and deals kept happening despite the lack of travel and in-person meetings. At Ericsson, we closed several high-profile deals, and are working on several others. It all happened through video-conference, with no travel at all. While this is a testament to the perseverance of the teams involved and the quality of the technology we developed, it is also a sign that our ecosystem is working efficiently. And the results are benefitting consumers with ever evolving technologies (5G is being deployed during and despite the pandemic), better options and vital, ubiquitous connectivity. Connectivity is the reason we could do work, school, see a doctor, get entertained in these challenging times.
Bridget Smith, Lowenstein & Weatherwax LLP
I am grateful for the renewed focus over the past year on improving diversity among IP stakeholders, both among inventors and the attorneys who represent them. The Inventor Diversity for Economic Advancement (IDEA) Act created significant momentum toward solving the diversity program among inventors. And I welcome the PTO’s recent announcement that the Legal Experience and Advancement (LEAP) program will be expanded to remove the requirement that practitioners must have seven or fewer years of experience to qualify for LEAP. There are many tremendously capable practitioners from underrepresented groups whose talents have been overlooked or underutilized their entire careers. It was such a shame that they could not previously avail themselves of the LEAP program because of their years in practice, and I am so pleased that has finally changed.
Jonathan Stroud, Unified Patents
This year, I am thankful for a seemingly endless stream of mentors in the profession—everywhere I have turned, at every stage of my career in IP, I have found a willing mentor, useful advice, or a friendly ear. I hope we all strive to continue to reach one hand forward, and one hand back, and never forget the next generation of lawyers who will take up the mantle.