What to Watch in 2021: IP Stakeholders Offer Predictions and Thoughts for the New Year

Each December, we ask industry experts to identify what mattered in IP for the previous year, as well as their wildest IP dreams for the new year. In 2017, another year-end series was born—predictions and thoughts for the New Year.

Attorneys instinctively eschew predictions—and after a year like 2020 we all have learned the hard way they are rather ill-advised—but these brave souls have gone out on a limb to look into their crystal balls, or simply to give their thoughts on what we should be watching or expecting for the year ahead.

Here are our esteemed panelists’ responses.

Bruce Berman, Brody Berman

I believe the Biden administration will respond only partially to the IP challenges needed to support its key initiatives: R&D investment, inclusion and Chinese IP theft.

The new administration has an opportunity to support in practice creators, as well as SMEs and entrepreneurs. This is especially relevant to those underserved inventors who have been unable to fully avail themselves of the benefits or the IP system. By nature, the Biden initiatives should be tied to improved IP certainty and licensing. But will it happen? If large technology businesses continue to frame the IP dynamic, America and its people will continue to struggle at the worst possible time: when it needs to compete with China and reinvigorate the economy.

David H. Bernstein, Debevoise & Plimpton LLP

In the three decades since Rogers v. Grimaldi, courts have maintained a respectful balance between trademark law and free speech in parody cases. When parodies are obvious, trademark claims are largely denied because consumers are not confused – they “get” the joke and know that the parody does not come from the trademark owner. When alleged parodies are more subtle, though, injunctive relief is appropriate to protect consumers against likely confusion. When such parodies arise in the context of artistic works – like films, books and video games – some confusion is tolerated to advance important First Amendment goals (though if the case for confusion is compelling, the parody may still be enjoined to protect consumers against deception). That careful balance was upended by the Ninth Circuit’s recent decision in the Bad Spaniels case, in which the court protected a squeaky dog toy that parodied the Jack Daniels brand on the grounds that the bathroom humor printed on the toy is expressive speech protected by the First Amendment. If not corrected, that radical expansion of Rogers threatens to allow the expressive speech doctrine to swallow all of trademark law, as infringers will be able to claim that virtually any use of a trademark owner’s mark is meant as a parody and should be protected as expressive speech. Jack Daniels’ petition for certiorari is pending; many in the IP bar hope the Supreme Court will take the case and restore the proper balance between trademark law and the First Amendment.

Matt Bernstein, Perkins Coie

Generally, I expect the return of some normalcy in patent cases, including in-person trials and in-person dispositive / Markman hearings by the second half of 2021.  While some courts such as the Western District of Texas and Eastern District of Texas already appear committed to conducting live trials during the first half of the year, I expect others courts will start lessening their trial backloads with live trials by late spring or early summer.  As the year progresses, with the threat of the virus lessening or at least better under control, I expect more courts and litigants will be willing to, and pushing for, participation in at least live Markman and summary judgment hearings.  Pre-COVID, video depositions were already something we saw on occasion, and I think they will continue to be used frequently in 2021 (and beyond).  But I think by the second half of the year, there will be more in-person depositions, especially of key witnesses.  It will almost certainly be up to the parties and witnesses whether the deposition can be live, but could the courts also get involved by ordering in person depositions if one party insists, either by requiring COVID testing or vaccination beforehand?  I think another big thing to watch is (obviously) Judge Albright in the Western District of Texas. He’s now the busiest patent litigation judge in America.  Plaintiffs continue to file cases there in record number.  So far, he’s only had one jury patent trial, and the defendant won.  Aside from trial, how Judge Albright continues to refine his procedures for trying to efficiently handle his huge docket is something patent practitioners should continue to watch.  All of this, if it comes to pass, means patent litigators will be hitting the road and traveling again.

Trevor Copeland Brinks, Gilson & Lione

Like everyone, I hope that 2021 brings some good (or at least better) things – including in the IP world. Notwithstanding broadly-differing views in the patent bar on the role and legitimacy of the PTAB, I believe it likely that SCOTUS will rule narrowly in Arthrex to avoid seismic upset of the judicial powers exercised by ALJs in the PTAB. I hope that the incoming Presidential administration will continue the excellent internal work on improvements to examination quality and logistics at the USPTO under Directors Iancu and Kappos; it’s vitally important to have an IP-savvy Director who appreciates the Constitutional underpinnings of IP and is committed to strong (but not unfettered) rights in valid patents, which includes internal training and structure of –and resources for– the Examiner corps. Although the competing voices involved will make it difficult to reach consensus, I hope to see legislation that clarifies and revitalizes patentability under § 101: rolling back the damage wrought by SCOTUS decisions including Mayo and Alice to reinvigorate protectable innovation in diagnostics, cutting-edge electronics, and other next-gen technologies. As a broader goal, I would like to see more innovators take advantage of design patent protections, by considering design as an integral part of their development and proactively pursuing protection where appropriate.

Matthew Dowd, Dowd Scheffel

For 2021, I predict major changes in patent law—or at least the beginnings of major changes. With the new administration, we will likely see a significant policy changes at the USPTO. Director Iancui has made substantial improvements in patent reviews under the America Invents Act, but there is still much to do. Many patent owners—particularly independent inventors and smaller innovators—fear that the new administration will result in a step back in policy. That may indeed happen. We shall see.

On the positive side, I see Senators Coons and Tillis becoming energized enough to muster the support for improvements to intellectual property law. They recently publicly highlighted the massive copyright infringement that takes place on the largest social media platforms. They also spearheaded hearings that detailed the deficiencies in current patent eligibility law. For meaningful legislation to see the light of day, the various stakeholders will have to accept a reasonable compromise, but it’s clear that improvements are needed for IP creators and owners.

The wild card is the timeline for returning to normalcy from the pandemic. With vaccinations starting, the U.S. and the global community are on the right path, but full normalcy is still down the road. Until we get there, the pace of legislative and policy improvements will be slow.

And we ought not forget that the speed with which vaccines were produced is entirely attributable to all the innovative scientists and businesspeople whose work is made possible by strong intellectual property regimes.

Taryn Elliot, Polsinelli

As the dust starts to settle from all the changes of 2020, we will start to see the longer term impacts of activities related to those changes, including infringement claims and a shift in IP strategy. Many companies rushed to adapt their technologies to meet new needs, and many companies ventured into new and unfamiliar territories to do their part in the fight against COVID. For example, companies had to adapt their technologies to comply with social distancing measures and facilitate remote interaction, including digital and remote healthcare and working environments. Some companies shifted their focus to manufacture PPE, ventilators, and other needed equipment. With the rapid speed that these changes occurred, we will likely see infringement claims for those that inadvertently moved into spaces covered by others’ IP. Infringement claims stemming from activities trying to help in the pandemic will likely see an increased public interest and potential backlash. As applications for COVID related technologies start to publish, there may similarly be public frustration from the perception that companies are trying to monopolize lifesaving remedies. On the other side, many companies in 2020 suffered from an increase in counterfeits and knockoffs, particularly in online platforms. We will likely see infringement claims stemming from counterfeits and knockoffs, as well as a shift in IP strategy to emphasize design patents more. The flexibility of design patents for use in different types of enforcement scenarios will likely result in increased design patent filings, including direct filings and via the Hague agreement.

Michael Gulliford, Soryn IP Group 

Where we are. We are in the midst of an awakening that the climate necessary for innovation to thrive is off kilter in the United States. The system may be ideal for a select few, but it is not for most. Creators of new technologies shouldn’t routinely be forced to lift the hood, in order to facilitate potential investment or M&A, only to have their technologies stolen in the end. But the system we have today ensures such outcomes, and the trail of corporate executives lamenting this reality grows longer by the day.

Where we’re going. Things will hopefully start to change as the realization continues that innovators need patents and need to begin thriving again. The signs are there. The U.S. is casting a skeptical eye towards the companies that convinced Congress to amend the patent laws in a way that would make it significantly more difficult for the competition to compete. People will be keenly aware that they are back to work, and vaccinated against COVID, because of innovation. And in the wake of COVID, everyone from the “gurus” of Silicon Valley to the same politicians responsible for misguided patent reform are calling for Americans to start building things again. Apps are great but we need, and are soon going to see, more “hard” innovation. A climate of patent respect will hopefully follow. It usually does.

Efrat Kasznik, Foresight Valuation Group

If 2020 has taught us one thing, it is to be careful with predictions…. nevertheless, at the risk of being completely off due to another unforeseen catastrophe, here are my predictions for the four IP and innovation trends to watch in 2021:

1. Technology to watch: Telehealth – if there is one clear winner that emerged in the aftermath off the COVID, it is Telehealth, which has been the darling of venture funding and IPOs in 2020, according to CrunchBase.
2. IP asset to watch: Copyrights – this year has seen large transactions involving music copyrights, such as Bob Dylan selling his entire song catalog for a rumored $400 million to Universal Music. This trend represents clear tax advantages, as well as ways to offset the hiatus in live events.
3. Region to watch: Texas – there has been a massive exodus in 2020 of tech companies moving their headquarters from Silicon Valley to Texas, including: Tesla, Oracle, and HPE. The highly skilled workforce moving to cities like Austin and Houston is likely create a tech boom, with new startups and hubs of innovation.
4. IP Service to watch: Trade Secrets Registries – with the proliferation of trade secrets as key intangible assets, one of the most interesting IP services to emerge is AON’s trade secrets registry. It offers a simple way to identify, record and manage trade secrets on an Ethereum blockchain platform.
   

Meaghan H. Kent, Venable

Stephen Kunin, Maier & Maier

I hope that the Supreme Court will side with the U.S. Government in the Arthrex series of cases. In the area of patent subject matter eligibility perhaps 2021 will be the year that Congress can pass a revision to 35 U.S.C. 101 along the lines of the AIPLA and ABA proposals.

Daryl Lim, Center for Intellectual Property, Information and Privacy Law, The University of Illinois at Chicago, John Marshall Law School

• National Security The Justice Department invoked national security as a reason for the Ninth Circuit to side with Qualcomm and against the FTC. It warned that hobbling Qualcomm’s investment returns would diminish its incentives to invest in 5G R&D, thus yielding a strategically important technology to China. Additionally, as a key Defense Department supplier, national interest dictated the case incentivize the company’s motivation to invest in R&D. New Chinese regulations now restrict sensitive exports vital to national security, expanding its toolkit of policy options as competition grows with the US over access to technologies that will drive the modern economy. 2021 may see continued seepage of geopolitics into IP disputes, particularly over critical technologies, making complex legal disputes even more challenging to resolve.
• Trade Deals Multilateralism seemed to be in its last throes. Recent inflection points in politics and the pandemic may revive US interest in plurilateral trade deals. With it will come the ability to engage and influence the IP policies of key partners. The US’s leadership gave the Trans-Pacific Partnership (TPP) the most advanced IP standards in any trade agreement to date. The US’ subsequent withdrawal left it standing alone as its eleven partners regrouped and ratified the rechristened Comprehensive and Progressive Trans-Pacific Partnership (CPTPP) with watered down IP provisions, likely to the detriment of US companies. China’s recent joining in the Regional Comprehensive Economic Partnership gives it a significant vehicle for IP norm-setting. The US needs a new framework to reengage and soon.

Charley Macedo, Amster, Rothstein & Ebenstein LLP

With a new administration and a changing Congress, we can expect to see a reshuffling of IP policies at the USPTO, Congress and the White House. It is still unclear whether this reshuffling will result in a return to the Obama era anti-patent policies, an enhancement of the Iancu-era desire to enhance patent owner rights, or something in between.  Either way, we will likely continue to see ongoing confusion on patent-eligibility issues at the Federal Circuit without any supervision by the Supreme Court, and more rules being developed by the Patent Office to implement policy.

Gene Quinn, IPWatchdog, Inc.
As Donald Rumsfeld famously said, there are known knowns and there are known unknowns. We definitely know that in several weeks we will have a new President and that means USPTO Director Andrei Iancu will resign his position. What we don’t know is who will replace him, although during the interim the leadership function will likely fall to the Commissioner for Patents, Drew Hirshfeld, who is easily up to the task.

We also don’t know whether President Biden will appoint a well-respected patent professional who believes in the patent system as an innovation driver to lead the Office, or someone more in line with thinking commonly associated with Silicon Valley, which tends to view patents as an unnecessary evil for the most part? As we have seen with the last four confirmed Directors, the choice matters greatly. Sadly, I tend to think it is likely that President Biden will pick a USPTO Director in philosophical alignment with the views of Silicon Valley, a prediction made easier given the presence of Colleen Chien on the transition team.

Given all that Twitter, Facebook, Google, et. al. did to help candidate Biden, it is also a safe bet to predict that Silicon Valley companies will be extremely well represented throughout a Biden Administration. With Congress considering Section 230 reform and updating the Digital Millennium Copyright Act, that should make it harder to get real reform of consequence. Of course, the existential threat posed by antitrust investigations at the federal and state level could change everything, although I expect these giant trusts to be able to walk and chew gum at the same time. Perhaps they will take their foot off the patent reform accelerator, but Section 230 and copyright issues will be too important to ignore, regardless of ongoing antitrust litigation.

Bhanu K. Sadasivan, PhD., McDermott Will & Emery

Genomic tools played an important role in tracking COVID and designing vaccines. Testing at home and telemedicine are the trends of the future. I predict IP interest in these technologies, if not already there, than likely to follow.

The issues of: (1) constitutional status of PTAB judges, currently before the Supreme Court; (2) how much disclosure is necessary to enable and adequately describe antibody patent claims, currently before the Federal Circuit; and (3) PTAB discretion on denying IPR petition based on factors unrelated to merit are worth watching.

Karen Sebaski, Holwell Shuster & Goldberg LLP

The breadth of collaboration between competitors, government entities, and other institutions to develop safe and effective vaccines to combat the novel COVID-19 virus has been a hallmark of 2020. Patent rights are an important aspect of such collaborations, which I expect will continue into 2021 and beyond as companies ramp up manufacturing and distribution and apply lessons learned to combat other diseases. Under ordinary circumstances, a successful, strong patent system can incentivize pharmaceutical companies and researchers to invest heavily in research and development to discover and produce life-saving medications. At the same time, patent rights afford drug companies a temporary monopoly over development, manufacturing and distribution, which can lead to higher prices and reduced access to life-saving medications. In the coming year, I will be watching to see whether, and to what extent, any patent rights are temporarily suspended or subject to compulsory licensing in countries that have authorized such authority.

William Stroever, Cole Schotz PC

In 2021 we should expect to see more of the impact of the pandemic on the IP scene. The increase in unemployment and the large number of individuals working from home spurred an increase in at-home businesses and start-ups. The number of trademark applications and patent applications jumped markedly in 2020, and it remains to be seen whether these businesses will continue in the new year. The remote-working trend will also no doubt generate some interesting trade secret cases as employees stretch company policies originally developed for in-office working. We also may see an impact of USPTO leniency granted as a result of the pandemic. In many cases, abandoned trademark and patent applications could be revived after certain deadlines had passed if the applicant included a statement that the abandonment was as a result of the impact of the pandemic. This may allow certain applications to bypass applications that would have otherwise presented a conflict.

Jonathan Stroud, Unified Patents

With the many changes in the House Judiciary Committee, the relative lack of change in the Senate, and the changeover in administration, I predict plenty of time, energy, and money will be spent by various interest groups to effectively stay deadlocked on IP issues. Expect a renewed push for a 101 fix (with less support from the House than the last go-round), a new USPTO Director (at some point), an interesting decision in both Oracle and Arthrex, and, probably most significantly, our first glimpse at the Chief Judge Moore-led Federal Circuit.

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