Posts in Interviews & Conversations

In Part I of the interview we discussed Judge Linn’s early interest in patent law and how he found himself appointed to replace the recently deceased Judge Giles Sutherland Rich. We then discussed engaging as a lawyer with civility while still zealously representing clients. That brought us to a topic near and dear to the Judge’s heart — the Inns of Court and the many patent focused Inns across the country that together make up the Richard Linn Inn Alliance. In Part II of the interview we pick up with the discussion of the Inns of Court and further discuss civility and “Rambo style of lawyering,” which Judge Linn explains was really the genesis behind the forming of the Inns of Court.

Those in the industry know that Judge Linn is one of a small group of Judges who are patent attorneys. He is one of us in so many ways. He is a very real and genuine person, he is a great believer in the patent system, and he has long been a friend to patent groups and a mentor to many. Judge Linn started his a career as so many patent professionals have — as the newest patent examiner at the United States Patent and Trademark Office. We spent approximately 60 minutes on the record with my iPhone recorder on, meeting in his chambers at the Federal Circuit, which overlooking Lafayette Park. Judge Linn recently took senior status, and lives full-time in Florida. He returns approximately every other month, sometimes more frequent, to hear cases. He will soon be giving up this office once the President’s appointments to the Court are confirmed.

In Part II of the interview, which is the final segment, we discuss how IBM keeps a watchful eye on the industry to learn from the mistakes of others, what the conversion to first to file will mean for IBM patents, how Watson is being deployed and David Kappos leaving the USPTO.

The Kappos era at the USPTO also largely coincides with the time frame where I started to write daily (sometimes more). I attend public events at the USPTO and have interviewed Director Kappos several times and most of his top lieutenants. I have gotten to know Director Kappos and have seen first hand what his leadership has meant to not only the USPTO, but to the larger patent system in general. He has been a friend to the patent system and in my opinion is leaving the Patent Office far better than he found it. He will be sorely missed when he leaves at the end of the month, although he will leave with an excellent management team in place to carry forward the work for which he has laid the foundation.

Whenever there is interesting IBM news of a patent variety Schecter has been gracious enough to make time to chat. The news of IBM’s patent supremacy wasn’t just any run-of-the-mill news, at least not in my opinion. The commitment to innovation and belief in the patent system has served IBM well for many decades, and twenty years as #1 at anything is astounding in a world dominated by parity and antitrust regulators that don’t want any single company to succeed too much. We discuss the commitment to excellence required to stay #1 for twenty years, the process for deciding which patents to keep paying maintenance fees on, what may change once the U.S. converts to first-to-file on March 16, 2013, how Watson is being put to use and the parting of USPTO Director David Kappos.

What you think of Ryan and Acacia is almost entirely dependent upon the side of the aisle on which you sit; namely whether you are an innovator or a practicing entity. Even more specifically, those who are innovators but don’t have a voice loud enough to be heard by practicing entities are likely to believe that Ryan and Acacia are the answer to their prayers. Those practicing companies that simply want to make a product and sell it without regard to the underlying patents that might be in place are likely to believe Ryan and Acacia are the poster children for everything wrong with the patent system. But you can decide for yourself. Without further ado, here is the culmination of the interview with Paul Ryan.

Paul Ryan is a more common name than you might think. In the world of politics when one speaks of “Paul Ryan” they are talking about the Republican Congressman from Wisconsin who was Mitt Romney’s running-mate and would-have-been Vice President. But in the intellectual property world, particularly the patent litigation world, the name “Paul Ryan” refers to the CEO of Acacia Research Technologies. It is the later Paul Ryan that went on the record with me to discuss Acacia, patent enforcement, how large companies who are infringers disregard innovative independent inventors and more.

Vice-Chief Judge Moore: “The statute requires that each of the judges have scientific ability.  It doesn’t actually require particularized training in any one individual specific area.  Permit me to key off of what the Chief said earlier — we do use that to advantage in some instances.  For example, imagine a software controlled electro-mechanical device which is useful in a biotechnology operation.  I could throw four different judges with four different specialties – biotech, electrical, mechanical, and software – on that so that that panel as a whole could understand it better and help each other through the process.  And that is a huge advantage.  We have at least one team here at the Board that’s truly multidisciplinary.  They handle all types of cases from all types of disciplines without regard as to their own personal technical training aspects.”

Chief Judge Smith: “The unique thing about the job particularly right now – and I think this is true for my job and the Vice Chief Judge job – is that while we have many, many administrative duties they do not remove from us completely the non-administrative judging duties that we have.  And I think we both like a mix in which we also get to the judging, sitting on panels for example.  We are under-emphasizing that part of our jobs right now because we absolutely have to do that.  There’s only so much judging you can get to in the typical 18-hour day when you have so many other things to do.”

The interview took place on the Alexandria Campus of the USPTO in the Madison Building. We sat around a modest conference table in the office of Chief Judge Smith. We chatted for approximately 60 minutes. Smith and Moore give us a rare glimpse into the Board and the day-to-day inner workings of the two top Administrators who also work hard to seek opportunities to stay engaged and join panels whenever possible.

Todd Sherer: “And what we’re seeing, what the AUTM survey is showing, is that patent budgets are going down. And that’s of concern to me, because everything has to go through that funnel. You can do a lot of research, basic and then applied research and have translational funding, but that technology has to come through the Tech Transfer Office and through the patent budget. So it doesn’t do us a lot of good just to have funding targeted at programs at the front end of that funnel to try to shove it through, through the right limiting step, or pull it out the other side. We need to also be mindful of the fact that we need to invest in those fundamentals, that patent and licensing part. Because we’ve also seen that the number of licensing professionals has gone down over the last couple of years in the Tech Transfer Offices. So, what we don’t want to see is that trend continue. We don’t want to see the number of our staff go down and the patent budgets go down at a time when we want to improve impact.”

Todd Sherer, Ph.D. is the director of technology transfer at Emory University, and is also currently President of the Association of University Technology Managers (AUTM). Recently AUTM concluded its annual survey and found, not surprisingly, that University technology licensing has substantial positive impact on the U.S. economy. On the heels of that survey I reached out to my friends at AUTM and requested an interview with Sherer. Our interview took place on Friday, December 14, 2012. During our interview we talked about the nearly constant challenges to gut Bayh-Dole, which is the very foundation of university technology licensing and the piece of legislation called the most successful domestic legislation in the post World War II era by none other than The Economist. We also discussed what it is that universities do and how, despite what the critics say, the basic research done by universities is hardly ready for the marketplace.

In Part I of the interview I spoke with Barber and Lewis about the AIPLA generally and how it manages to specifically accomplish its mission, which seems to be to voice an opinion of the membership on virtually every intellectual property issue both domestic and foreign. In Part II, which is the finale, we start off talking about the assault on intellectual property rights, particularly the erosion of patent rights.

Just ahead of the 2012 AIPLA Annual Meeting I had an opportunity to go on the record with Bill Barber, then President and now Immediate Past President of AIPLA. Also joining the discussion was Jeff Lewis, who was then President-elect and is now President of AIPLA. In part 1 of this 2 part interview we talk about the organization and how it operates, as well as the time commitment they invest.  We also discuss getting “buy-in” from their law partners and their families.

There are two stages of litigation in the Supreme Court.  There’s what’s called the petition stage and the merit stage.  This is a phenomenon that doesn’t exist in the Federal Courts of Appeals, which are courts of mandatory jurisdiction.  There’s no doubt that if you lose a patent trial you have a right to appeal to the Federal Circuit.  You don’t have to come hat in hand begging the Federal Circuit to take your case or making it appear so sexy that they’re smitten and they take it.  But the Supreme Court of the United States has very, very little mandatory jurisdiction.  It’s almost all discretionary jurisdiction.  It gets 10,000 petitions a year and it currently grants review in about 75 cases a year.  And so there is a whole level of advocacy that begins with the filing of a petition for a writ of certiorari and then it’s followed by a brief in opposition by the winning party below and then a reply brief.  And whatever amicus briefs are filed by friends of the petitioner or the respondent in 10,000 cases in which the court is picking a few for plenary review.