Posts Tagged: "Laurie Self"

At today’s Heritage Foundation event in Washington, D.C., titled Restoring American Leadership in Patent Law and Innovation Policy, former U.S. Patent and Trademark Office Director (USPTO) Andrei Iancu began by lamenting the failure of decision makers to make the connection between intellectual property and innovation. Increasingly, policy makers think innovation just happens, Iancu explained, with too many believing monetization happens after the fact, rather than driving innovation. “Without IP, the free market does not participate, or does not participate to scale,” Iancu told the Heritage audience. Laurie Self, Senior Vice President and Counsel, Government Affairs, Qualcomm, agreed with Iancu and added that, without a strong patent system, there is no opportunity to maintain a strong innovation leadership position. Presumably alluding to developments such as the Biden Administration’s support for waiving IP rights under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) related to COVID-19 inventions and the recent Executive Order on Competition, Self said: “We are seeing a series of policies that if implemented would undermine our system… this cognitive dissonance is a threat.”

On May 9th I attended the International IP Commercialization Council (IIPCC) USA Chapter second annual program at the United States Capitol.  The topic of the event was Meeting the Threat to America’s Economic Future: US IP & Innovation Policy where representatives from IBM, Qualcomm, Personalized Media Communications, the Cleveland Clinic and the University of Michigan, as well as a Who’s Who of IP Leaders and policymakers, shared their real-world perspectives on the state of the US Patent System, and the effects it has and will have on the economy. 

Phyllis Schlafly was a giant who well understood the importance of the U.S. patent system, why structural choices were made that lead to a unique patent system compared to the rest of the world, and how vital it was to our national and economic security. In the end, as she knew she would not live forever, she wanted those similarly dedicated to the mission to understand the that work must continue, which was a recurring theme of the celebration and remembrance of Schlafly last night.

Typically, the reform debate over the U.S. patent system features smaller players, but America’s largest tech firms also have issues with the patent system, which go way beyond any single company’s ability to sustain success… Leading off the panel’s remarks was Manny Schecter, chief patent counsel for IBM, who noted that innovation is a risk-bearing operation. “The likelihood that you ever make an investment [into research & development] is based on the return you anticipate on getting in that investment,” Schecter said. Any reduction to the anticipated return caused by uncertainty in IP policy discourages R&D investment. Schecter added that one of the ways in which intellectual property promotes innovation is by preventing others from taking innovations which are not their own. “We want to minimize or control uncertainty in the IP space if we want to maintain an IP surplus and promote the viability of the economy,” he said.

Phyllis Schlafly was a true friend of and advocate for the American inventor. Mrs. Schlafly’s life-long admiration of inventors was deeply felt and well-founded. Her biographer reports Mrs. Schlafly regarded an inventor to be “the most glorious product of the free-enterprise system.” She had firsthand exposure to an inventor: her father, Bruce Stewart.

Former Cisco CTO, Charles Henery Giancarlo, explained that it was understood that individuals would not be able to manufacture and would need to license their rights to others. “It was specifically contemplated that this would engender a licensing industry with respect to patents.” Indeed, Phelps would later point out that 70% of early U.S. inventors did not even graduate high school. Thus, the founding fathers purposefully set up a system that had unique attributes: “it was cheap so everyone could use it,” Phelps explained. And the founding fathers also knew that the patent system they were creating would lead to individuals obtaining patents on their inventions and those individuals would not be able to manufacture, but would instead license those rights to others. But today “patents are suddenly pro-competitive only if you are a manufacturer,” Self explained.

Phil Johnson on IPR: “I think with hindsight we might say they made the mistake of relying on the Patent Office to promulgate regulations for fair proceedings for both patent owners and to challengers. And they expected, for example, that the same claim instruction standards would be used in IPRs are as used in the courts. They expected that when the law said that a patent owner could file a reply in the institution phase that it wouldn’t be told oh, no, you can’t include new evidence for that reply. They expected that other burdensome presumptions, including things like consideration of objective indicia of nonobvious would be treated the way it is in the courts, and so on. So in the end they expected that the outcome in IPRs would be approximately the same as in the courts and what we have seen is that that absolutely is not the case and, therefore, it’s not that — necessarily that the law was wrong, it’s that I don’t think pharma decisions and bio decisions have been promulgated properly.”

The inaugural IAM event Patent Law & Policy, which will focus on how developments in law and policy affect patent owners’ ability to monetize their rights, will take place in Washington DC on November 17, 2015. This one-day conference in Washington DC offers all those involved in the patent market the perfect opportunity to listen to, learn about and engage in the many legal and policy debates currently taking place around patents.

Notice letters play an important role in the patent system. Indeed, as the Supreme Court has explained, ”[p]atents would be of little value if infringers of them could not be notified of the consequences of infringement.” Virtue v. Creamery Package Mfg., Co., 227 U.S. 8, 37-38 (1913). Patent law encourages patent holders to take reasonable steps to notify others of existing or pending patent rights and their possible infringement. In some instances, federal patent law requires patent holders to send notice letters to accused infringers to preserve their patent enforcement rights and ability to collect damages. Notice letters and licensing communications can also serve the interests of accused infringers. Once a patent holder has made its rights known, the accused infringer can determine whether to cease the allegedly infringing activities, negotiate a license, or decide to continue its activities based on an assessment of non-infringement or invalidity.