Aarti Shah is a partner with Kilpatrick Townsend, where she focuses her practice on patent litigation and has extensive experience as trial counsel. She assists companies in all industries, particularly high tech and life sciences, to protect their innovations. Leveraging her insider’s view gained during her time spent as a senior investigative attorney in the U.S. International Trade Commission (ITC), Aarti helps her clients develop and implement effective ITC strategies. She particularly enjoys simplifying technology for judges and juries, devising creative and pragmatic strategies, and working closely with in-house counsel. She has a particular interest in helping companies fight counterfeits and knockoffs.
Prior to joining the firm, Aarti was a member of an international law firm in its Washington, DC office where she focused her practice on patent litigation. Previously, Aarti gained extensive experience as trial counsel, having served in the ITC as a senior investigative attorney. During her tenure in the ITC’s Office of Unfair Import Investigations, she served as lead counsel for the federal government in seven trials and in over 25 ITC investigations, covering trade secrets, trademarks, and electrical, computer, mechanical, and chemical patents. Prior to working with the ITC, Aarti practiced as a patent litigator in the Alexandria, Virginia office of an international law firm where she handled district court litigations relating to computer, electrical, mechanical, and pharmaceutical technologies. She also handled appellate litigation before the Court of Appeals for the Federal Circuit and provided counsel on patent portfolios and infringement opinions.
Aarti is very active in pro bono matters, particularly those relating to women and children, and is listed in the D.C. Bar Pro Bono Honor Roll.
Aarti is frequently invited to write and comment on ITC litigation matters. She has limited working knowledge of Spanish and Gujarati.
This has been a year full of ups and downs, including at the International Trade Commisison (ITC). The ITC has stayed open for business, instituting a near-record number of investigations and holding hearings, albeit virtually. There have been a number of ITC decisions with interesting holdings, all of which have been covered well here and in other blogs. However, there have been a number of ITC-related happenings in 2021 which, though they received less coverage, may, like the proverbial butterfly, have important ramifications for years to come.
On September 2, the U.S. District Court for the Eastern District of Virginia issued a decision granting a Motion for Summary Judgment for the United States Patent and Trademark Office (USPTO) and upholding the Office’s view that AI algorithms cannot be listed as inventors on U.S. patents. The court pointed to the Administrative Procedures Act’s (APA’s) strong deference to final agency decisions, barring any egregious errors. DABUS generated outputs corresponding to (1) a fractal design for food container surfaces that may help prevent stacked containers from sticking together and (2) a technique for controlling the timing of flashing warning lights to help attract attention. Dr. Stephen Thaler (DABUS’s creator and owner) filed patent applications on these inventions that were filed around the world, listing Thaler as the applicant and listing only DABUS as the inventor.
Patent systems around the globe offer a quid pro quo that exchanges limited monopolies for disclosures of inventions. Most patent filings list: (1) the inventor(s); and (2) the applicant. The applicant may be an assignee (e.g., company, university, organization, etc.) with rights to seek patent protection on innovations that were identified during employment and that were within a scope of employment. Frequently, the assignee is a current or former employer of the inventor(s). In some jurisdictions (e.g., in the United States), the inventor(s) hold the rights to prosecute the patent application and assert any resulting patent unless and until the inventor(s) assign those rights to another entity (which is frequently done in employment and work?for?hire contracts). In some jurisdictions (e.g., the European Union), it is presumed that the party that applied for a patent holds the rights to the patent application. Thus, it is well-established that non-human entities may be the applicant, assignee, and/or owner of a patent. However, it is not well-established that a non-human entity may be an inventor on a patent applicant. Multiple patent offices (e.g., USPTO, UKIPO, and WIPO) have been considering what the standard in this respect should be.
Case filings at the U.S. International Trade Commission (ITC), a popular venue for resolving intellectual property disputes, reached record levels in 2018, and 2019 appears likely to be another busy year. In fact, there have already been a number of important decisions, including one in Qualcomm’s high-profile battle with Apple relating to the public interest, one making it clear that the ITC has jurisdiction over those only indirectly involved in infringement, and an opinion addressing the overlap between the ITC and the Food and Drug Administration (FDA) as well as the ITC’s ability to police misleading advertising and labeling of pharmaceuticals, cosmetics, and dietary supplements.