IPWatchdog Annual Meeting Program – 2020

The 1st Annual IPWatchdog Conference will run from Sunday, March 15, 2020 to Wednesday, March 18, 2020. We will begin with a fireside chat on Sunday evening, March 15th, followed by an Opening Reception. On Wednesday, March 18th, we will end with a two-hour ethics breakfast with MCLE credits requested. In total, we will have six (6) General Session panels; eighteen (18) Breakout panels; two (2) Luncheon Keynotes; three (3) Breakfasts; six (6) Networking Breaks; and three (3) Cocktail Parties. We are planning a special St. Patrick’s Day Celebration on March 17th!

Below is information about the substantive panels. We expect more than ninety (90) top-level speakers, many of whom are already confirmed. See Confirmed Speakers. Complete Agenda with panel dates/times to follow.

1. The Future of Monetization

The patent policy landscape in the US has caused an uptick in interest in Europe and China in recent years. With the marketplace in flux many continue to take a fresh look at foreign markets and foreign patent portfolios and foreign strategies. Indeed, the changing landscape in America continues to alter business models and monetization strategies associated patents worldwide. This panel will discuss what the future looks like, where it is most promising, and why.

2. Global IP Landscape: Where to File & Why

The U.S. Chamber of Commerce’s Annual Global IP index is a comprehensive ranking of 50 economies around the world based on intellectual property climate. This session will: (1) Analyze the IP landscape in both improving and declining countries; (2) Discuss why the U.S. received its 2020 rank from the Chamber; (3) Review where the U.S. ranks for patents, copyrights, trademarks and trade secrets, and why; and (4) Explore what other countries are consciously doing in order to provide a more robust IP ecosystem.

3. The Role of Chief IP Officer in the 21^st Century Industrial Economy

How does one create a culture of creativity to spur innovation? While deciding what innovations needs protecting and how to combat the ever-growing threat of counterfeits, the Chief IP Counsel must run a department with employees that are often in different jurisdictions and from different cultural backgrounds and generations. This panel will discuss the day-to-day issues facing Chief IP Counsel, as well as forward-looking strategic matters and how IP can (or should) permeate the C-suite.

4. Enforcing & Licensing 5G SEPs: An Innovators Perspective

Without substantial investment by those who play the difficult role of innovator, there would be no standards – essential or otherwise. 5G technology is no different. Of course, without technology implementers who roll out standards and cutting-edge technological advances to consumers, even the greatest advances would lay dormant and unused. How does one strike that proper balance? This session will explore the issue from the viewpoint of the innovators in the race to deliver revolutionary 5G.

5. The Future of the CAFC: Is the Court Still Relevant?

The Federal Circuit summarily disposes of 50% of its docket with one sentence decisions. The Court has also said repeatedly it is unable to provide help on patent eligibility even well all Judges agree the invention should be patent eligible. Some panels also refuse to follow en banc precedent relating to secondary considerations, instead turning secondary considerations into rebuttal evidence. These and other peculiarities require discussion of the relevance of the Federal Circuit circa 2020.

6. Litigating Patents in Texas: Trends, Best Practices and Differences Between Districts

Many believed that was going to come to an end when the Supreme Court decided TC Heartland, and some patent litigation that might have otherwise been filed in Texas has moved, but make no mistake, Texas courtrooms are very active. While Marshall, Texas is still a popular venue, Waco, Texas is quickly becoming the new mecca for patent infringement lawsuits due to recent case law and the arrival of a patent-savvy district judge. This panel will explore the realities of litigating in Texas, trends, best practices and the differences between the districts.

7. Everyone Wants to Be a Unicorn – But What About Patents?

A study of the IP positions of Unicorns (i.e., startups with valuations of over $1 Billion) conducted in 2015 revealed that 30%of US Unicorns have no US patent assets at all, while approximately 62% have 10 or fewer US patent assets. Is it in the best interest of management and investors of these companies to examine their IP position and analyze their exposure, particularly if they are planning to enter new markets? Are these Unicorns at a higher risk of impending litigation? How does the lack of patents impact the success of their exit events, like an IPO or acquisition? These and other questions will be discussed.

8. Hatch-Waxman and IPR Strategy

The Hatch-Waxman Act encourages generic drug manufacturers to challenge patents of brand name drugs by filing an Abbreviated New Drug Application (ANDA) with the Food and Drug Administration (FDA), typically resulting in patent infringement litigation. In recent years, inter partes review (IPR) at the Patent Trial and Appeal Board (PTAB) has created an alternative path to challenge those same patents. Support of the Hatch-Waxman regime view IPRs as upending the careful Hatch-Waxman balance, but the IPR process seems here to stay. This panel will explore the latest thinking and best practices for defending and challenging pharmaceutical patents in and out of federal court.

9. IP as an Asset Class: Valuing Assets in Support of Monetization Strategy

Intellectual property and technology asset classes are highly valuable, but they often are illiquid and difficult to value. Although patents and other forms of intellectual property are often critical to maintaining sustainable competitive advantages and profit margins in many industries, methods for valuing these business assets can dramatically undervalue the real value when applied to these assets made up of a bundle of negative rights.

10. Establishing a Patent Strategy for the Innovation Lifecycle

A sound strategy continues to be to organically grow a strong patent portfolio; maintain a true understanding of your portfolio’s strengths and weaknesses; and make sure that portfolio strength and strategy aligns with overall business goals and objectives of the corporation. Easy to say and harder to do in the real world when faced with budget constraints, changing laws and evolving marketplaces. This session will discuss business and corporate realities as patent departments seek the best, highest quality patents.

11. High-Tech Patent Litigation Trends: 101 and the Return of Competitor Lawsuits

In 2017, there was an increase in cloud patent lawsuits filed by NPEs, and a trend of high-volume plaintiffs filing multiple lawsuits against cloud customers.  Today, we see an increase in competitor-based lawsuits with assertion against open source software by NPEs and operating companies alike.  Legal dynamics are emerging across the board as competitor-based lawsuits are increasing in all areas of high-tech patent litigation, the result of court decisions and a PTO granting more software patents. Patent eligibility remains a pressure point, but the litigation landscape is changing.

12. Litigation Financing: Funding Patent Infringement Litigation

Law firms and businesses increasingly rely on alternative financial solutions for complex legal matters. Litigation funders engage in a rigorous analysis of the law and evidence and invest in claims when they believe there is a reasonable likelihood of success. While the facts of each case are unique, this panel will discuss the type of litigation opportunities that litigation funders are seeing and are attracted to, and why.

13. In Search of Injunctive Relief in Patent Infringement Litigation

Because patent damages will generally approximate only what a negotiated pre-infringement license would have cost, implementers have no real incentive to take a license and instead reasonably engage in what is known as efficient infringement. This has increasingly made the International Trade Commission (ITC) a more attractive forum for at least some patent owners. Still other patent owners are choosing to litigate disputes in Germany, China or elsewhere around the globe.

14. FRAND: What is Fair, Reasonable and Non-Discriminatory?

Those contributing patented technologies to the development of a standard are asked to provide a FRAND (which stands for Fair, Reasonable and Non-Discriminatory) assurance, in essence committing to providing access to patents that are or may become essential to the implementation of the standard. But what is fair, reasonable and non-discriminatory? This panel will discuss, among other things, the 2017 decision in TCL v. Ericsson that while Ericsson negotiated in good faith, their licensing offers were not FRAND rates. In addition, we will discuss Qualcomm v. Apple, where it was argued that Apple forfeited entitlement to FRAND by not being a willing licensee. We will also discuss the use of patent pools when collecting rights and licensing SEPs.

15. A Bridge of Tears for Life Sciences

We are starring at a future where more groundbreaking and breathtaking medical innovations cannot be predictably and reliably protected. Not surprisingly, this uncertainty leads to disincentives to the development of new diagnostic tests, which is not in the public interest. Meanwhile, Congress and Presidential candidates are posturing with respect to drug prices and rather than try and tackle the real problems driving drug prices, patents become the easy and popular enemy. Where are we now? Where are we heading?

16. IP Transactions & Portfolio Management: Finding What You Need & Backfilling a Portfolio

Many high-flying Silicon Valley success stories have raced out of the gate with little or no organic patent protection in an attempt to be first to market. Eventually, when the company wants to go public or put them self in condition for acquisition, a patent portfolio is required. It is at that point that an acquired patent portfolio (or portfolios) will supplement the organic portfolio to backfill for earlier priority years. This panel will discuss knowing when it is time to buy, knowing what you need and finding the assets that will appropriately backfill a portfolio.

17. Where it All Started – The Why and How of IP Blogging from the Bloggers Perspective

Have you ever wondered why we started writing? Why would we decide to publish our thoughts to the world? And has it been a useful tool to generate business, or anything other than a labor of love? Over the years many IP bloggers who have stuck with it have managed to build a reputation within the industry as experts in their field. Hear what they think about blogging, why they started, and what they think about the big legal issues of the moment.

18. Patents at the PTAB: How the Times Have Changed (or Not)

The Patent Trial and Appeal Board (PTAB) has been described as the most influential patent tribunal in the world. This session will explore best practices for handling a variety of complex issues, such as serial petitions, the statutory bar, claim construction issues, the current state of what it means to be a “real party in interest”, limitations on discovery, challengers lacking standing to appeal and more.  The panel will also explore how the Procedure Opinion Panel and other changes have impacted practice, procedure and outcomes.

19. The Gender Gap: Addressing STEM Education, Funding & Inventorship

The number of women inventors has quintupled since the 1970s, yet fewer than 20% of issued U.S. patents have at least one-woman inventor and fewer than 8% list a woman as the primary inventor. This patent gender gap is not the only such gap. While 36.3% of all businesses in the U.S. are women-owned, only 3% of venture capital funding went to businesses with a woman CEO between 2011 and 2013.The question: What can and should be done to close the gap? What are the short and long-term solutions?

20. Preparing and Prosecuting a Patent that Holds up to Challenge

Obtaining a patent that will hold up to challenge when the patent owner seeks to use that patent, whether through litigation enforcement or a licensing program, requires thoughtful consideration from the earliest stages. This session will discuss: (1) Specification challenges and pitfalls (101 vs. 103); (2) Carefully considering claim terms and infringers; (3) Fixing problems before and after allowance; (4) When should you be willing to take a case to appeal? (5) Portfolio building techniques: Identifying valuable claims to add. (6) Drafting an application to be used as a priority document overseas.

21. Strategies for Protecting AI and Machine Learning post-Alice

Artificial Intelligence (AI) and Machine Learning (ML) innovations are transforming industries. However, AI and ML are a very broad terms, and potential uses of these technologies spans across nearly all industries. Given the variability of what falls within the meaning of AI or ML, and when within a development cycle such an innovation occurs, what are the possible and most valuable intellectual-property strategies to protect these important innovations in a post-Alice era?

22. Keeping & Enforcing Rights in the Age of Amazon

The problem for many innovators is not whether you can acquire rights, but rather whether you can keep and enforce them.  Many tales illustrate how large companies use lawsuits, PTAB challenges and blatant counterfeiting to wage war against smaller companies by effectively stealing products that have been featured at trade shows, on QVC or Shark Tank, or which have crossed a certain threshold of funding on crowd funding platforms such as Kickstarter. Panelists will discuss various strategies to protect products using all available forms of intellectual property and the pros/cons of each, as well as tactics for distributing through online marketplaces, like Amazon, and working with those online marketplaces if/when IP issues arise.

23. Worldwide Design Rights: Strategic Use of Design Rights in the Era of Alice

Design rights can also be an extremely useful tool in your intellectual property arsenal, particularly when you are attempting to create overlapping protection. This panel will summarize the various design-related legal rights that are available to build value. The panel will provide best practices for identifying when and how to interface with legal counsel when such rights might be available and provide case examples for protection strategies in different product segments. When and how to use the Hague Agreement, as well as design related litigation will also be discussed.

24. Trademark Strategy: Fighting Knock-offs, Counterfeits & Brand Abuse

Many companies are continually using design patents and trademarks to fight against knock-offs from entering the United States. Companies like Nike and Adidas, as well as professional sports leagues like the National Football League, Major League Baseball, National Hockey League and National Basketball Association are constantly fighting what seems to be a losing battle when it comes to keeping counterfeits off Amazon and other online platforms. What are the primary considerations a brand owner must keep in mind? What are the best practices in the global fight against counterfeits?

25. Ethics

This one-hour ethics presentation will cover the following topics: (1)The United States Patent and Trademark Office (USPTO) Rules of Professional Conduct, which became effective May 3, 2013; (2) Select Final Orders and Settlements resulting from disciplinary proceedings brought by the Office of Enrollment & Discipline at the USPTO; (3) Litigation ethics; and (4) In-house ethics for IP attorneys. One-hour of MCLE ethics credit will be requested.