Exclusive: Behind the Scenes at the AIPLA

On September 6, 2012, I spent the day at the offices of the American Intellectual Property Law Association.  The premise of my visit was to get a behind the scenes look at the inner workings of the AIPLA.  In order to obtain this insider’s perspective I suggested that I follow Todd Dickinson around for a day.  Dickinson is the current Executive Director of the AIPLA and a former Director of the United States Patent and Trademark Office.

Dickinson and the staff at the AIPLA agreed with my request and a day where Dickinson would have both internal and public meetings was scheduled, or actually re-scheduled. This profile on the AIPLA was pitched much earlier in the year and I had hoped it could coincide with Dickinson being inducted into the IP Hall of Fame. Unfortunately, personal matters got in the way, followed by my busy travel season for the PLI patent bar review course.

Eventually, we settled on September 6, 2012. This would be the day of the USPTO roundtable in Alexandria, Virginia, held for the purpose of discussing the proposed rules relative to implementation of the first to file changes to patent law that will go effective on March 16, 2013.

I really didn’t have any preconceived notions about what I would experience at the AIPLA.  I know what the organization is, I know what they do, and over the years I have come to know Todd Dickinson, bumping into him at virtually every major industry event I attend.  While I don’t want to ruin the story by jumping to the conclusion, I can say I was thoroughly impressed by what I saw.  The shear magnitude of the work that is done by the AIPLA staff and the many dedicated attorney volunteers is staggering.

One of the things I found most fascinating was how the AIPLA works to build a consensus among its members, which isn’t always easy to do with so many members from so many different technical fields of endeavor.  I just didn’t realize how much vetting goes on at the AIPLA.  I witnessed first hand the behind the scenes discussions between Dickinson and several of his top Lieutenants, including Vince Garlock (Deputy Executive Director), Albert Tramposch (Deputy Executive Director, International and Regulatory) and James Crowne (Director of Legal Affairs).

Over and over again as issue after issue was addressed one or the other would interject into the conversation a question about whether they were either getting ahead of the Board of Directors or whether the Board had taken a position.  As an outside observer it at first seemed a bit odd, but it became clear that this was part of the dynamic.  In order to ensure that the AIPLA is always speaking as a cohesive unit there were articulations of what the Board has said and authorized.  This open discussion would lead to a consensus that it was acceptable to move forward or that additional input would be required from the Board.

But how does the AIPLA operate to get any particular task accomplished while staying true to the views of the majority of its membership?  I think you may be surprised at just how much work goes into that endeavor.

What I witnessed, which I know was just a snapshot of life at the AIPLA, is that there are a series of Committees with primary responsibility for one area or another.  Within those committees there will be a number of subcommittees that are working on various things that fall within the Committee jurisdiction.  The subcommittees are made up of a manageable number of people so there are not too many cooks involved, but enough to get perspective.  Once a subcommittee has completed the task at hand it will percolate up to the full Committee.  The Committee will kick it around, discussing the issues involved, and may send it back down to the subcommittee for additional work. At the end of the Committee consideration a “position” of the Committee on the issue emerges.  Then the Committee will kick it up to the AIPLA staff, who will then work things up and put a package in condition for consideration by the Board.  All of the subcommittee and Committee work is done by volunteers and facilitated and coordinated by the AIPLA staff.

I asked Dickinson about the AIPLA processes and he gave me this response, which addresses the mechanics of working on an issue and taking a position:

Our staff reviews the output from the committees, and then, if it’s a formal matter, we’ll either have the committee put it into resolution format, or we help them draft one. Then we usually ask the committee to debate and vote on it to have a known position prior to adding it to the Board’s agenda.  The Board is not shy about sending things back to the committee if they want a refinement or they want some additional information, they’re not always shy about necessarily overturning some things.  For example, it sometimes happens with Amicus issues, but it can happen with other matters too.  But the input and the amount of input is pretty significant.

At the end of the day, the public face of the AIPLA is Todd Dickinson who is dispatched by the organization to carry the message of the AIPLA to the Patent Office, Congress and many other forums literally around the globe.

One of the meetings I sat in on during the day was a meeting specifically for the purpose of last minute fine tuning and revisions to the prepared remarks Dickinson would deliver at the USPTO roundtable on the proposed first to file rules.  The meeting formally lasted well over 1 hour, but then continued in a more informal manner during lunch, which was brought into the conference room.

Dickinson would have 10 minutes to deliver his remarks, at least officially.  I have been to a number of these events over the years at which Dickinson has spoken and I can’t ever remember him actually finishing within the time allotted.  That is not intended to be negative.  Quite to the contrary.  Dickinson is a respected member of the IP community and as a former USPTO Director he is given great latitude to say what he has come to say.  His remarks are always on point, instructive and delivered with a certain respectful authority.  I have never seen him cut off.  This level of deference undoubtedly serves the AIPLA membership very well.  When Todd speaks people listen.

At the outset of the meeting Dickinson started reading he prepared remarks.  At the end of nearly every sentence was a pause.  He would look around the room for comments.  He would ask questions about wording and at times whether they wanted to just cut that out completely to focus his limited time on other matters.  He accepted feedback from his top Staff and in places wording was refined and then practiced.  It was like so many attorneys do when they are preparing opening remarks or closing for trial, or preparing the delivery of those few crucial lines before getting interrupted by an Appellate Court.

Time came for us to leave for the USPTO.  There had been some joking comments throughout the day about Dickinson driving to this meeting or that meeting.  At one point earlier in the day when discussing travel plans for a Texas trip Dickinson had said he would drive, which elicited quizzical looks and a few jokes.  I didn’t get it, but soon would.

Garlock would be driving us to the USPTO. As we fastened our seat belts for the relatively short drive from AIPLA headquarters in Arlington, VA, to the USPTO campus in Alexandria, VA, Dickinson opened his brief case and picked up a law review article written about the passage of the America Invents Act so that he could immerse himself in the issues and legislative history.  Dickinson has read this article before, likely several times, but wanted to make sure that everything was on the tip of his tongue.  No moment of potential preparation would be wasted.

This reminded me of how the litigators in the firm I started at so many years ago behaved.  As the young associate I always drove, they always read a case or article or deposition as we made our way to the courthouse.  This was how I learned to practice law.  Those who are the most prepared and in command of the issues and facts are the ones that nearly always prevail.  There is no substitute for diligent preparation.  Dickinson’s approach to representing the AIPLA is exactly what you would hope it to be, and expect it should be.

I was thoroughly impressed with what I saw at the AIPLA.  The Staff of the AIPLA has what seems to be an extremely monumental task.  Between the so many critical cases on so many different issues, they have rule package after rule package to address, as well as any number of international issues important to the AIPLA membership.  They coordinate a band of dedicated attorney volunteers in what can only be described as an elaborate orchestra of moving pieces, parts and diverse opinions.  Attempts to reach consensus make the work all the more difficult, but in the end the AIPLA is capable of speaking with authority on behalf of the interests of its members, even if from time to time they need to recognize that while there is a clear majority opinion there is a significant minority in disagreement.

After we returned from the USPTO I had the opportunity to sit down with Dickinson one on one for the record.  There will be two interview segments forthcoming on various issues.  In addition to discussing substantive patent law we also discussed the AIPLA generally, volunteer opportunities, how the AIPLA is able to keep up with all of the issues presenting themselves in a seemingly never-ending and continuous steam, Federal Circuit appointments and much more. There were several things that came up during this discussion that specifically seem to deserve a mention in this article.

As already discussed, it can be a monumental task to achieve a position of the AIPLA given the diverse interests of the membership.  Here is what Dickinson told me about building a consensus, which is how the AIPLA prefers to operate.

Where that becomes an interesting challenge  when a genuine new issue come along, and where there is a constituency.  When you’re talking about a big, big question like patent reform where we’ve had 20 years of past actions to rely on where we’re basically just adjusting, or tweaking  a new “sub” question that comes along.  If you bring on a new question out of the blue, for example, like in the ITC, standard setting or copyright questions tend to fit this a lot, where our committees sometimes have members which have constituencies, it’s a little tougher in order to develop the consensus position that we do.  But we try hard.  And if we can’t come to a consensus position, occasionally we won’t take a position, because  we do try and operate on consensus by and large.    For example, our ITC Committee wanted us to come in with a certain recommendation relative to the Kyocera opinion.  We debated it at length during three Board meetings in a row, and we finally were able to come to a consensus.

Dickinson on getting involved with AIPLA:

The other thing to take away from the process is that almost all of our substantive committees are open to any AIPLA member.  And so the Patent Committee has, approximately 1600 members or something.  However, there are only about 500 who are active voting participants.  But if you are interested in the policy questions, if you’re interested in participating and getting a point of view across, if you’re interested in doing the work, AIPLA is an organization like others, but where, in particular, where you can get involved quickly.  The cream really rises quickly to the top here.  And the opportunity is available, to participate at a very senior level.  I’m always amazed by people coming to me and saying, well, I’d love to get involved with that, what do I do?  I say, well, join a committee.  The bulk of our committees have a lot to do and the committee chairs would like nothing more than to have you help them out.  And then the next thing you know you’re the committee vice-chair and then you’re the chair and then you’re on the Board and one thing leads to another.

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[A]nother great advantage of AIPLA membership, frankly, and membership in our committees is the opportunity to make the professional relationships in other countries first hand.  You make relationships in other countries in which there’s nothing more important than shaking their hand, looking them in the eye and having a glass of beer together to lead to client development, especially for newer attorneys, developing a client portfolio  The other great thing I like a lot, are the friends internationally that I’ve made just as the result of this job.

Dickinson on the international nature of the AIPLA:

While we are the “American IP Law Association” so many of our issues are global.  And so many of our issues depend on knowing what opinion makers in other countries are thinking, what our colleagues and peers are thinking, what the commissioners and the patent offices are thinking and planning, and we bring that back to our members and we hope to inform and influence what those opinion leaders are doing.  For example, we are one of the two U.S. organizations who represent the user community with the Trilateral Office meetings, with the IP5 office meetings where many day-to-day operational harmonization and work-sharing issues are planned and implemented.  And so we take that obligation extremely seriously.  Of course, our international work also benefits our members in developing the kind of professional relationships that in many cases are critical to their practices, so we welcome the opportunity to grow our global outreach side.

Stay tuned for more of my behind the scenes look at the American Intellectual Property Law Association.