AIPLA Exclusive: On the Record with Todd Dickinson, Part 2

Todd Dickinson at the 2012 AIPLA Annual Meeting in Washington, DC.

On September 6, 2012, I spent the day at the offices of the American Intellectual Property Law Association(AIPLA) to get a behind the scenes view of what goes on at the largest of industry organizations for intellectual property law.  My initial article on my day was published at Exclusive: Behind the Scenes at the AIPLA.

At the conclusion of my day at the AIPLA I sat down for an on the record conversation with Q. Todd Dickinson, the current Executive Director of the AIPLA and former USPTO Director.  In Part 1 of the interview we discussed how it is possible for the AIPLA to stay on top of the numerous, never-ending issues that present themselves in the Courts and at the USPTO.

In this final installment of my interview with Dickinson we discuss the Federal Circuit, including the rumors that I have heard about him possibly being on a short list for a future appointment to the Federal Circuit. As you will see, Dickinson deflected those rumors, although acknowledging they are flattering.  We then move on to talk about judicial appointments in general, as well as the next big issue that will face the Federal Circuit in the coming years.

Without further ado, here is the conclusion of my interview with Todd Dickinson.

QUINN: Now, I don’t know whether you had an opportunity to see when I interviewed Bob Stoll recently.  One of the things I asked him was, what names he is hearing for potential appointment to the Federal Circuit.  And he said, you.  Two years ago I interviewed Don Dunner and he gave me his short list and again you were on that short list.  And I would say you would be on my short list, too, and I’m happy to tell you why.  And I’m not necessarily going to ask you do you want the job, are you lobbying for the job.  But when you hear people like Bob Stoll and Don Dunner say that they think you would make a good Judge, how does that make you feel?

DICKINSON: Well, that’s very flattering, but I really can’t comment on that.

However, we have,  prepared a white paper which we presented to two White Houses in a row now, talking about the kind of characteristics we’d like to see in appointees.  We haven’t singled names out, at all, but we’ve indicated what kind of characteristics we think would benefit the Court and make for good appointees.  For example, we thought that it would be a very good idea, and we support it as others have, the idea of having a district court judge with trial experience.  So we were very pleased, of course, that Judge O’Malley was appointed.  We also would like, and this may even be more relevant now that Judge Linn is  taking senior status, somebody who comes from a more of a pure patent background, who has it kind of baked in, if you will, and knows the systems and the new statute.

QUINN:  Yes.  And that’s one of the things that I worry about.  Not that I don’t like the appointment of any of the Judges. I mean, I think they’re all great, I think they’ll all be fine, and they are all highly qualified. Of course, I disagree with them a lot, but I disagree with a lot of people and enjoy the debate.  But I do worry that over the next handful of years we may find ourselves with few or no patent people on the Federal Circuit.

DICKINSON: Hopefully that worry won’t be realized, but we’ll see.  As I said,  I think we in our white paper would like to see  consideration given someone with a solid patent background for at least one of the next few  appointments.

QUINN: Okay.  I’ll leave it at that.  I prodded you enough there, I appreciate you playing along.  Now, on a more broad level, what issues do you see coming up in the IP community in the long term?  Because if I had told people ten years ago that here in 2012 we would be dealing with the biggest issues being related to patent subject matter, I think most people would have looked at me like I was crazy.

DICKINSON: I think that’s a pretty big  surprise.  But I think one of the biggest issues, and where we should be focusing, is on international harmonization, which fortunately is where Director Kappos seems to be focusing a lot of his attention.  I think the time is ripe, and I think we as an organization are very pleased that he’s put that back on the table so aggressively.  I think in many ways it’s a legacy issue for this generation of leaders.  When I first came into the office in the 90s we had negotiated I think five or six treaties. Some of them pure IP, some with major IP implications, such as TRIPS .  But there’s been a gap after that, and the next big thing has always been getting to substantive harmonization.  There are structural reasons, political reasons why that hasn’t worked as well as it might have.  But I think we have an opening, a significant opening now with the AIA passage and first-inventor- to-file that should really provide the new opportunity  For President Battistelli, Director Kappos, Commissioner Iwai and his successors from the Japanese Office and others, this is an opportunity to really leave something behind. So we’ll see what happens on that issue.

Domestically, I agree with you.  I’m a little surprised by the real strong focus that’s been placed on 101 issues, patent eligibility issues. It is, in many ways, cyclical , however.  Twenty years ago when I first was getting involved with policy issues, the big question was whether living organisms were patentable as a policy matter.  Should bacteria, even if they were genetically modified by people, be patentable subject matter.  That question is really gone from the table.  The generation before that, should atomic energy, should nuclear weapons be patentable subject matter, that sort of thing.  And we go through these waves of discussion about it, what’s interesting  is that several of the debates are connected strongly to the most important technologies that we’re working on at the moment.  Biotech genetics, software and IT, and the  Supreme Court’s great challenge if they want to stay in that area, is to make sure that they are mindful of the bigger picture implications of what those kind of decisions might lead to.

QUINN: Well, I’ll throw this out at you.  The thing that worries me most about this is it seems to me that the people pushing patentable subject matter issues we could characterize as the anti-patent community. And that is troublesome to me because I know what a patent means to the business community, particularly the small business and start up business.and the reality is that in the sound byte world that we live in, they win.  Because the patent story is not one you can tell in ten seconds.

DICKINSON: Well, it’s I think one of those debates we could have forever; whether patents incent or dis-incent technological development.  I think that there’s obviously a lot of evidence that we wouldn’t have the system that we have at this point, without having  it as an incentive and is helpful to protect particularly—protect and nurture new technologies.  That said, there are an awful lot of very compelling arguments that are made on both sides.  And if that’s the way you frame up the argument, you’ve created a tough call.  I don’t think the argument necessarily needs to be framed that way, to be honest.

QUINN: Let me peel another layer of the onion to get to where I’m thinking. I think a lot of these cases could simply be decided by recognizing a poorly drafted claim.  And these poorly drafted claims do not actually represent the innovation in a fair way.  But that’s not what we wind up getting from the Supreme Court, they make it this big global issue when we as patent attorneys can say, you know, in retrospect you could have written it this way or maybe you should have written it that way, or  maybe this was a test claim to see how far you could go.

DICKINSON: There’s a  legal cliché that’s been  around forever, that  tough cases can make bad law.  And a corollary to that would be, I think, bad facts can make bad law too. I can’t tell you how many times people have said, well, this claim is poorly written and  I can’t believe that’s the one the Supreme Court took.    And to go from a situation where, for example, the examiner has 120 cases before them in a year, on average, where they’ve got to make the kind of determinations the Supreme Court makes once every 30 years on obviousness or  even 101, is intriguing.  You’re worried that the world view that the courts get is sufficient in terms of the overall process.  But we’ll see.  That’s the way the system is set up for them to do it.  If they take more and more cases, they may get an ever more rounded view of the challenges of hitting this thing right.

QUINN: Maybe they will.  Because there for a while the popular belief was that if the Supreme Court is taking the case it’s going to be to overturn. and there have been a few others where maybe they said, ah, it wasn’t necessarily the only test but you came out with the right to ultimate outcome.

DICKINSON: I think also 101 is an  area where the broad outlines of the issue are  fairly easy to grasp.  If the question comes down to, is it patentable subject matter in a new technology especially, within the  confines of how  we have defined it before I think, can be a  tempting target for a Supreme Court to take a look at.  However,  it is the boundaries of 103 or 112 which comprise the bulk of cases in the pipeline that will more importantly shape the jurisprudence, but those may not seem as interesting, or as sexy as a caseload, I don’t know.

QUINN: Yes, and that’s the other thing I worry about, too, because 103 is the big ticket issue.  And we’ve got some situations where prior art gets interpreted sometimes in bizarre ways at the Patent Office.  And not that I think—

DICKINSON: For example, I think a potentially  next big question  is likely going to be along the lines of Cyborg, the standard under which the CAFC reviews district court cases. I think as an important and pragmatic and practical question that may likely be reviewed which  would have significant implications.

But don’t forget, the most contentious issues by far, are  those dealing with the very real concerns that the software and IT community has about the impact of non-practicing entities, and a lot of the debate during the pendency of the AIA is  about what was the right approach to deal with the problem.  What happened, interestingly, was the Courts listened and were  not unmindful  of what was happening in the world.  They understand that a number of these issues were created by court decisions, by the common law, and they had the opportunity to take a fresh look at them, to make things a little clearer, a little more nuanced, a little more aware of their implications.   And interestingly, they  did that almost across the board.  They did it in damages, they did injunctions, the Supreme Court in eBay, they did it with willfulness, they did it in equitable conduct and Therasense, you know, you can go right down the list.

QUINN: And yet we still have the problem.

DICKINSON: The issue’s out there. I would submit the big issue in the public policy arena has moved beyond the story of the troll.  It’s not quite so much trolls any more, though that still exists, as it is the cell phone wars.  Now maybe you say one leads to the other, but we’re talking big money now, we’re talking big boys now.

QUINN: Right.  Which I guess to some extent that has kind of gone away.  I think probably more so because of the AIA and some of the venue things.  And to make it more difficult to sue 150 unrelated people.

DICKINSON: I think that’s true.  I think again we’re very proud of the fact that the AIPLA filed a brief in the Volkswagen case in the 5th Circuit, which led directly to TS Tech, the case on venue.  Which gave the Eastern District more discretion in terms of where those cases would be brought .  I think you can draw a direct line there, and an appropriate one.  And you start to see they are taking an open-eyed view of  what the impact of the tough venue, the purer venue had led to.

QUINN: I think that one of the problems with the whole troll thing that I saw, and I have kind of a different definition of “troll” than most because I think the patent is a right, you’re granting a right if you own the right and somebody is infringing that right, they are a tortfeasor, it’s not that the patent owner is bad for wanting to get paid for the right that’s getting trampled. But there are a whole bunch of these people out there, small players, largely any more, that will get a patent and then go after every Mom and Pop that they think has got enough money to collect something but not enough money to hire an attorney.  And that’s where the problem is, is with the pre filing investigation.  And they don’t care.

DICKINSON: And they’ll settle for the cost of litigation. I think you’ve got a problem.  When that happens repeatedly, you’ve got a system that has a major problem there.


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