Speech on Intellectual Property for 2018 at the Annual Meeting of the Bar Association of Montgomery, County Maryland

Tomorrow I reprise my update on IP law at the Bar Association of Montgomery County, Maryland, which is the county adjacent Washington, DC. Lots to report, The Oil States patent case has introduced even more confusion into U.S. patent law. But the appointment and confirmation of the new Director of the USPTO, Andrei Iancu, offers some rays of hope. I also address recent events in copyright, trademark and trade secret. For those in the area, I hope that you can attend.

Here is the program: http://c.ymcdn.com/sites/www.barmont.org/resource/resmgr/temporary_newsletter_files/2018_annual_meeting_web_file.pdf

I am Chair of the IP Section. If you have any questions about IP or require assistance (I have both domestic and international clientele) please contact me.

http://www.rayvandyke.com vandyke@acm.org
My website is being updated so please excuse its primitiveness;)
Ray

Oil States: a Very Slippery Slope

In a narrow but still huge decision today, Oil States Energy Services v. Greene’s Energy Group, the U.S. Supreme Court today relegated patents and challenges to them as more a public, as opposed to a private, right.  Justice Thomas wrote the opinion of the Court that under the “public-rights doctrine” great latitude is accorded  in allowing the adjudication of “public rights” by non-Article III adjudicators, e.g., political appointees.  The Court held that Article III federal judges (life appointment, more independent) are not needed in Inter Partes Review patent challenge proceedings at the USPTO, where a private challenger can seek the invalidation of a patent under the auspices of a USPTO Board, where the “judges” are subject to the Director and other political appointees that “adjudicate” the patent right.  This particular point was made manifest when a former Director allegedly sought to overturn Patent Board decisions not to her liking by appointing more judges to skew the judgment (panel stacking).

Also,  the majority, looking to history, viewed patents, particularly some patent challenges, as not being entitled, under the common law of the 18th century and beyond, to trials  by jury.   Indeed, the Court held that the Patent Clause in the Constitution, at the founding of the patent system, inherently included a contemplation for potential cancellation proceedings.  Even though Justice Gorsuch in his dissent seriously questioned this interpretation, the Court said that the “historical practice” of the courts over the last two centuries does not matter because under the “public-rights doctrine” the USPTO is perfectly ok today.  Thus, with this finding, patentees are also not entitled to jury trials under the Seventh Amendment since there is no private property taking involved.

In the decision, Justice Thomas sought to narrow the conclusion of the Court today to just the constitutionality of these IPR proceedings, and not extend this viewpoint to other contexts of patents, leaving the “private property” notion for some patent rights hanging.  In his dissent, Justice Gorsuch lucidly contested the majority’s viewpoints and the holding, considering it as dispensing “with constitutionally prescribed procedures” for expediency and a “retreat” from constitutional guarantees for citizens.  Indeed, the majority seemed to interpret the jurisprudence and the historical context quite differently than Justice Gorsuch, viewing the case as an administrative correction, as opposed to a patent case.   The injustice of this decision will have enormous ramifications.

However, as a practical matter, the Justices as a whole were perhaps loathe to invalidate IPR and the thousands of Board decisions made so far, and thus instead stretched the Administrative State to now include IPR patent rights, forfeiting the parties’ private patent rights.  As noted in the oral argument, this decision takes patent rights back to the days of supreme rulers, such as Elizabeth I, where the patent “monopoly” is entirely subject to the ruler’s whim, granting and taking, instead of a patent system for creating a protected and secured private property right.  Here, the government giveth and government can taketh away.  Patents are just franchises, like taxi medallions, under the view of the majority.  Our Founders shudder.

With only two Justices viewing patents as private instruments, Gorsuch and Roberts, this does not bode well for the future.  Congress needs to act to fix this.  However, with the insidious influence of the tech lobbyists to squelch private innovation and future technology challenges by any means, it is doubtful that Congress will step up.   Thus, in due course, when the next Court challenge accrues encroaching on patent rights, we will again be faced with a majority of the Justices deeming patents as another administrative right to be curtailed, instead of the special instruments they are for the private citizen to contribute to Society as a whole, as our Founders intended, by getting a short-term incentive to innovate.  Liberal IPR proceedings over the last few years, invalidating many valuable patents, have significantly undermined the importance and value of patents, the consequences for which are being felt by entrepreneurs, inventors and investors for future technologies.  Today’s decision perpetuates this injustice, much to the delight of our world competitors.

With the value of patents being diminished, and today’s decision is a further diminishment, innovation in America is suffering, the next cures for diseases are compromised, the next valuable app is being thwarted, and the American spirit of invention further quelled.  All because a majority of our Justices deem the patent system as something not deserving of constitutional protections, which is in direct conflict with the Court’s own history and jurisprudence.  The only good news of late is the appointment of Andrei Iancu as Director of the USPTO, who is changing the dialogue.  Hopefully, the Justices will consider patentees not as trolls, but as important keystones to our success as a nation.

World IP Day 2017 Redux

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The celebration of World Intellectual Property Day at the U.S. Patent & Trademark Office was held on April 26, 2017, where April 26th is the official anniversary date.

After the Chief Policy Officer of the USPTO, Shira Perlmutter, started the event, there where a number of distinguished speakers, including John Sandage, World Intellectual Property Organization (WIPO) Deputy Director General, Patent and Technology Sector, Joseph Ferretti, Vice President and Chief Counsel, Global Trademarks at PepsiCo, Inc. and President of the International Trademark Association (INTA),  Jeanine Hayes, Chief IP Officer of Nike, Inc., and Mario Bollini, Co-founder and Chief Technology Officer, Global Research Innovation and Technology, Inc. (GRIT).  Ms. Hayes demonstrated Nike’s commitment to improving lives with innovation, this year’s WIPD theme, with the latest in Nike technology.  Mr. Bollini then demonstrated his all-terrain Freedom Chair for the disabled.

it was a hard act to follow, but follow I did with my talk on the History of Innovation, with examples of important inventors that improved lives, such as Edison (the light bulb illuminating the night ), Morse (transmission of information faster than horses), various medical innovations, such as that of Raymond Damadian of Fonar (the creator of the magnetic resonance imager) and many other fascinating technologies.

I also talked about the origins of the intellectual property laws and the reasons we have them.  For patent and copyright, our Founders enshrined these rights into the Constitution itself – with the other “rights” set forth in the attachment, The Bill of Rights.  Also, our Founders in essence democratized the U.S. patent system, permitting anyone to file for and obtain a patent.  This was a big change from the systems on the Continent.  George Washington extolled the benefits of a patent system in the First Inaugural Address.  Also, Abraham Lincoln was an avid fan of the patent system and spoke at length about its advantages – equating the importance of the patent system to the founding of the United States.

The above speakers also spoke later at the Senate Hart building, and numerous Congressmen showed up, including Representative Goodlatte of Virginia, with whom I spoke about the importance of the patent system benefiting all Americans, whether individuals, small companies or large corporations.  We both strongly agreed that this was in America’s best interest.  Under his direction, the House of Representatives that day approved by a vote of 378-48 the Register of Copyrights Selection and Accountability Act  (H.R. 1695), which would make the appointment of the Copyright Registrar a Presidential one (instead of the current Librarian of Congress) and for a term of ten years.

I should also add that Senator Coons of Delaware, a staunch supporter of the patent system, also spoke.  His strong advocacy of the patent system is quite welcome to the patent bar and all innovators relying on the patent system.

Celebrate World IP Day! April 26th

Every April 26th is World Intellectual Property Day (WIPD).  This commemorative day was created many years ago by the World IP Organization in Geneva.  As the Chair of the Washington, DC Chapter for the Licensing Executives Society (LES), I have been championing this day for many years at the Chapter.  The intellectual properties, i.e., patent, copyrights, trademarks and trade secrets, are critically important in today’s economy, and I, as an intellectual property attorney, champion my clients in the protection of their various intellectual properties.

The celebration for this year, April 26, 2017, involves the use of Innovation for Improving Lives.

The United States Patent & Trademark Office (USPTO) has graciously invited me to give a talk on this topic, technologies through history that improve lives and also the history of intellectual property.  My part of the program will begin at noon in the Madison Auditorium at the USPTO in Alexandria, Virginia.  I have today confirmed that the event is free and open to the public.

Earlier at 11 AM, however, a number of important people will be presenting, including the Chief Policy Officer of the USPTO, Shira Perlmutter, who will kick off the event. John Sandage, World Intellectual Property Organization (WIPO) Deputy Director General, Patent and Technology Sector, and Joseph Ferretti, Vice President and Chief Counsel, Global Trademarks at PepsiCo, Inc. and President of the International Trademark Association (INTA), will give opening remarks.

Beginning at about 11:15 a.m., two keynote speakers will address this year’s WIPD theme of Innovation: Improving Lives by showcasing technologies brought forward by their respective companies. Jeanine Hayes, Chief IP Officer of Nike, Inc., will present FlyEase technology. Mario Bollini, Co-founder and Chief Technology Officer, Global Research Innovation and Technology, Inc. (GRIT), will demonstrate the all-terrain Freedom Chair for the disabled.

For those in the area, I welcome you to attend.  As noted, the event is open to the public, but is also focused on the Examiner Corps training.  Nonetheless, the speakers and I will be entertaining to all!  Please feel free to email me at vandyke@acm.org if you have any questions.

Ray