This week on IPWatchdog Unleashed we have a special episode. At the end of September we held our annual all-topics conference, which we call IPWatchdog LIVE. This conference brings together some of the top thought leaders and newsmakers from the entire industry, with a variety of different backgrounds and people who focus on various different niche verticals within the IP community. So, while the conference was ongoing, Eileen McDermott, our editor in chief, asked some of the industry leaders in attendance what they thought was the most important issue facing the intellectual property industry.

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András Jókúti is an intellectual property lawyer, former Director-General for Legal Affairs of the Hungarian Intellectual Property Office, and he is a former Fulbright Scholar. Since January 2022, András has served as the Director of the Patent and Technology Law Division at World Intellectual Property Organization. András came to the United States last week to speak at IPWatchdog LIVE 2024, which was hosted at the Renaissance Capitol View hotel in Arlington, Virginia.

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Over the last six months, only 6.3% of Federal Circuit actions have been precedential patent decisions. If so little of what the Federal Circuit is doing relates to patents, why do we need or want a “patent court”? Meanwhile, what decisions the Federal Circuit does issue are panel dependent and show not a care in the world about the court’s original mandate, which was to create a unified national patent law and recognize that at least some patents have to be valid and enforced. And now, over the last two years, we have an inexplicable usurpation of authority with the virtual impeachment of Judge Newman. If these judges are so unfamiliar with basic due process and the opportunity to be fairly heard, why should anyone believe they are themselves competent to be judges on any level? The Federal Circuit is a mess.

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There is absolutely no doubt that at least some bad-acting patent owners continue to engage in a systematic game of extortion that leverages judicial inefficiencies and the often-outrageous costs of fighting and winning even when there is absolutely no merit to the patent infringement allegations. And these patent owners who do engage in this type of bad action do the industry a tremendous disservice, because these nefarious actors behave so egregiously that it causes a stain on the entire industry, and sadly it allows for all patent owners to be swept up together. That means that those patent owners with a real grievance—and there are many—get unfairly labeled as patent trolls and treated as if they are engaging in the same low-rent bad action as the truly nefarious actors.

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You need to have a purpose and a goal. You need to be addressing an identifiable problem with a real, concrete, technical solution. And you need to focus on something that will actually matter to the client… Sure, with smaller portfolios each patent needs to really count, but even if you are acquiring patents by the thousands, for those innovating in the standards space, for example, you need to make sure the patent you will get actually reads on the standard, because as Eli and I discuss, a patent that doesn’t read on the standard is worthless.

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On IPWatchdog Unleashed this week, we had a wide ranging conversation on patent strategy, including working with patent examiners—for example, what to do when you are assigned to a difficult patent examiner with a low allowance rate—the importance of interviews, tips for getting past 112 rejections, and how outside counsel can build solid, working relationships with in-house counsel, and much more.

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Last week we hosted our first annual Women’s IP Forum, which was a huge success. During early planning for the program USPTO Director Kathi Vidal was immediately enthusiastic and supportive. We were honored to have Director Vidal join us to kick off the program—a program that featured 100% women. In speaking with Renee Quinn at the program, Director Vidal would go on to discuss how she started down the STEM path and ultimately found herself with a career in law and specifically in the IP field. She also spoke of the advice she would give to her younger self, how women can elevate themselves within the industry, and took questions from the audience.

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We also spent a good deal of time discussing obviousness, KSR, and how at least sometimes, perhaps even often depending on the wording of the rejection from the examiner, you really only need to argue a lack of teaching, suggestion and motivation to persuade examiners that the claims you seek are nonobvious and allowable. “Evidence is still a requirement for motivation to combine,” Rogitz said. “On some level the TSM test is still the controlling test because… if you need evidence for a suggestion or motivation… that’s the TSM test still.”

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What makes the ITC such an important venue for intellectual property rights owners is the ability to rather quickly obtain injunctive relief in the form of an exclusion order. This is an important tool for patent owners because since the Supreme Court issued its landmark decision in eBay v. MercExchange in 2006, it is has been increasingly difficult, in fact absolutely impossible for many patent owners to obtain any form of injunctive relieve against infringers even after the infringer has been adjudicated as being liable as an infringer and the patent in question has withstood all challenges in all forums.

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During our conversation we explore much of what is happening in DC relating to patents and innovation, and specifically discuss matters ranging from proposed guidelines from the National Institute of Standards and Technology relating to use of march-in rights to control drug prices, to the recently introduced RESTORE Act, which is little more than one-page would largely if not completely overrule the Supreme Court’s eBay decision and create a presumption that victorious patent owners who have proved infringement and withstood all invalidity challenges would be presumed to be entitled to injunctive relief.

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If you are an inventor of a consumer product there are reputable companies looking for inventions and ideas to bring to market, and their business model is built on taking products to market over and over again, and they are in constant need of new products and improvements. They also realize litigation is wasteful when you are dealing with products that often have a 1-, 2- or 3-year shelf life, so they are willing to do deals that allow them to quickly get products onto shelves and into the stream of commerce, and inventors get paid.

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This week our conversation is with Patrick Kilbride, who is a public policy expert with significant expertise at the intersection between market economics, innovation and intellectual property. At the beginning of our conversation Kilbride explains that “one of the most remarkable things about the American economy is that what we have done historically does seem to be so unique.” He then pointed to five distinguishing features, which we spend the rest of our conversation discussing. According to Kilbride, what makes the U.S. unique is that the American economic approach enables risk taking and failure, fosters competition and ensures goods and services can cross state lines, provides property rights, is based on the rule of law, and establishes markets.

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Pharmacy benefit managers, or simply PBMs, are often owned by either the pharmacies themselves or sometimes by insurers, which creates a lot of self-dealing to say the least. These PBMs are middlemen who receive 50% of the value of the drug, significantly raising drug prices. This has nothing to do with IP whatsoever.

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The term Artificial Intelligence itself has largely become the generic term used to describe a variety of related but different concepts, often wrapping together AI, Machine Learning and Generative AI as if they all relate to the same thing, or as if there is a single technology that is, in fact, AI. These related but different technologies differ in scope, function, techniques used, and they also differ in terms of trustworthiness and reliability. Much of what will discuss today will tackle the technical issues that face the industry and innovators in this space. Specifically, we will discuss the various practical manifestations of AI, ML, and Generative AI as they currently exist in 2024, and are likely to exist in the near future. We will attempt to separate fact from fiction with respect to what these technologies can currently do, what the technology does well versus what the technology struggles with, and what the industry can expect moving forward.

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This week on IPWatchdog Unleashed, we turn our attention to patent policy and the Biden Administration, particularly the Adminstration’s efforts to make it more difficult for pharmaceutical companies to obtain and keep patent rights. For this episode, I spoke with Brad Watts, who is Vice President for Patents and Innovation Policy at the Global Innovation Policy Center at the U.S. Chamber of Commerce. Prior to joining the Chamber, Brad spent eight years working in the U.S. Senate, his last several years as Republican Chief Counsel on the Senate Judiciary Subcommittee on Intellectual property, where he was responsible for planning and implementing Senator Thom Tillis’ (R-NC) and the Republican party’s legislative agenda on all aspects of intellectual property.

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