Our conversation this week focuses on Spaceport Technologies, which is a technology company that enables brand owners to monetize their IP and game platforms to offer content creators the ability to license the use of those brands within their game environment. To provide these licensed in-game experiences Spaceport uses innovative technology that reduces transaction costs and allows for the monetization of intellectual property assets. In fact, through the use of Spaceport protocols and apps the acquisition of rights and payment for those rights through numerous small dollar value transactions is not just faster and easier, the deals actually become possible.

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This week my conversation is with Carlo Cotrone, who is a Chief IP Counsel and frequent contributor to IPWatchdog, both our online publication and at our in-person programs. During our conversation we discuss taking a holistic view that focuses on the IP strategy, the people, and the operational aspects of building and managing a team, which includes both in-house employees, outside law firms and service providers, all working together in coordination to deliver high impact for the company. We also discuss the need to guard against your in-house team falling into doing commoditized work, which gets in the way of your in-house team really partnering with the business and maximizing value for the company.

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This week my conversation is with Leo White, who is Chief IP Counsel and Associate General Counsel for The Duracell Company. During our conversation we begin by briefly talking about patent strategy, but then move quickly to brand protection, trademarks, trade dress and effectively working with customs agencies around the world. While Duracell does patent its various battery technologies, and while White is responsible for maintaining a worldwide patent portfolio for the company, the company’s trademark and trade dress portfolio are the IP tools of choice used most often when working to fight the never-ending battle against counterfeiters and copycats, and to also protect against gray market imports.

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This week on IPWatchdog Unleashed, my conversation is with Brian Hinman, who is one of the leading IP executives and investors in the world. Brian has held senior executive positions at leading technology companies, such as IBM, Philips and Verizon. During our conversation, Hinman explains how Cote provides capital for scaling manufacturing and operations with IP assets-backed investment and with those assets including designs, patents, trade secrets, know-how, copyrights, proprietary equipment, customer contracts and even data. The way Hinman describes this IP asset-backed investment strategy sounds a lot more owner-friendly and startup-friendly than a typical venture capital round of investment. Which is not to say anything bad about venture capital or the venture capital business, but when VCs come in, they often want quite a lot of the company, frequently more than half of the company, in order to make an investment. We also discuss pending legislation, particularly the RESTORE Act, and who President-elect Trump should nominate to be the next Director of the USPTO.

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On the heels of this win in the Senate for those in favor of PTAB reform, the very next day USPTO Director Kathi Vidal wrote on the Director’s Blog about how wonderful the PTAB has been, saying in part: “Since AIA proceedings began over a decade ago, almost 70% of challenged patents have been upheld at the PTAB.” Simply stated, she is wrong. If you actually look past the extraordinarily misleading PTO narrative you see a very different reality. The incontrovertible facts presented by the PTAB itself demonstrate that of those patents that reach a final written decision at the PTAB 85% lose at least one claim and 70% lost all claims. This factual reality is exactly opposite of what Director Vidal claimed. The PTAB is not a friendly forum for patent owners—it has always been and continues to be an extraordinarily favorable forum for challengers. The PTAB is harming innovation in America because it is making it untenable for individuals and small entities to even get started.

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During the latest episode of IPWatchdog Unleashed, I speak with Josh Harlan about monetizing various investable streams of revenue in media, sports and IP, and we also make a hard pivot to then later discuss artificial intelligence and what those looking to invest in AI should be considering. We also discuss the viability of the fair use defenses that are presently being made in the ongoing lawsuits brought by copyright owners against AI developers and the likely future marketplace for monetization of training data and AI outputs. As you will hear during our conversation, Harlan sees the possibility of some pretty big damages awards on a one-time basis for content creators and their copyright lawsuits against large AI developers, but he does not see that as an existential threat to the AI industry itself.

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I invited Walt to join us for our annual life sciences program this year. My pitch was that we would have a one-on-one conversation that would not only make up the final segment of the program, but which would also be used for our IPWatchdog Unleashed podcast. He graciously accepted my invitation, and we sat down for this conversation on Wednesday, October 30. Our conversation focused on the role of science, technology and innovation in U.S. competitiveness and for U.S. national security. We discuss the ongoing Bayh-Dole march-in rights drama being caused by his old agency—NIST, the diverging approach to commercialization between universities who can own and license patent rights and federal agencies, the upward trajectory of China vis-à-vis innovation and intellectual property, and the stagnation within the U.S. innovation ecosystem.

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We invited Judge Newman to speak at our annual Life Sciences program at IPWatchdog Studios, which gave Judge Newman a platform to tell her side of the story in her own words and to discuss what the Federal Circuit is doing. So powerful were her comments that at least several in the audience were seen shedding a tear, and she received a hearty standing ovation. “My colleagues decided in some secret procedure, the nature of which I still don’t know, that I am physically disabled and mentally incompetent, and they told me so, and that I would hear no more cases. As you can imagine, I protested, and after I filed suit in the district court to raise the Constitutional issue, they withdrew the charge of disability, physical or mental, but they didn’t withdraw the penalty, which is still in effect.”

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In this episode of IPWatchdog Unleashed, we discuss patent prosecution with the director of intellectual property at one of the top five filing companies in the world. My friend, Sivon Kalminov,is the Director the Intellectual Property Division at Canon USA. During our conversation, we discuss the unique set-up of the Canon intellectual property department, which sees Sivon and his team representing Canon USA, but also representing various Canon entities from around the world as they enter the United States to obtain patents on previously filed applications. We also discuss the U.S. Patent and Trademark Office (USPTO) switching from EFS-Web to Patent Center, the unceremonious death of the After Final Consideration 2.0 program, examiners raising Section 112 and Section 101 issues for the first time in a Notice of Allowance, strategies for working with examiners, the importance of interviews to get on the same page with examiners, when and whether it is appropriate to appeal examiner rejections to the Board, and much more.

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This week we explore small and medium sized enterprises, often referred to simply as SMEs. And in particular, we take a look at how two different countries are working with their own small businesses to assist them with respect to innovation and intellectual property. To accomplish this, I turned to two friends – Mike McLean and Joe Doyle, who work to assist SMEs in Canada and Ireland respectively. Both Mike and Joe were in the United States at the end of September to speak at IPWatchdog LIVE 2024, on a panel titled Empowering SME Growth by Leveraging IP. During our conversation we learn about the ways both the Canadian and Irish governments are supporting SMEs, which is something that we in the United States should be doing to a much greater and coordinated degree.

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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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