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AIPLA President's blog: A year in IP




As his AIPLA Presidential Term draws to a close, Jeff Lewis reflects on trolls, the need for public education at home and engagement overseas

It is a cliché to say that the last 12 months – my year as AIPLA President – has flown by quickly, and yet it has. It was only last October that I was installed as President, and I felt that sense of awe at holding a post previously held by many giants of our profession; now we are celebrating the installation of another President. As I look back over this last year, I am overwhelmed by how much we have accomplished as an Association.

When I assumed office the United States Intellectual Property landscape was dominated by the America Invents Act (AIA), but the word "troll" was quickly beginning to dominate all discussions and eclipse AIA. Whether called "licensing entities", "non-practising entities," or "patent assertion entities", the concept is hardly a new one, but suddenly the press and public persona are making it seem as if it is a new phenomenon. (They also speak longingly about inventors like Thomas Edison, ignoring the fact that he was a non-practising entity who had thugs "enforce" patent licenses for motion picture equipment until the courts held that his trust went "far beyond what was necessary to protect the use of patents" violating antitrust laws.) Nonetheless, there has been vituperative debate and that has caused a sea-change in the public perception of intellectual property.

Before I go any further, let me say directly that there are some bad actors who are asserting poorly issued patents or trying to extort monies well beyond the value of the patents they are asserting. In part I blame those bad actors, but I also blame Congress for diverting funds from the USPTO at a time when software applications were a new and exploding field (and this is primarily about software patents) and the USPTO could not fully fund prior art searches because of this diversion. The patent world is not unique in having bad actors of course, it equally is true of any profession, group or subgroup, but that does not mean that the patent system is broken.

Nonetheless, patents are being criticized from all quarters and incendiary opinions seem to have more sway than fact. Newspapers are publishing news and opinion pieces attacking patents (its often tough to tell which are opinion and which are news), academics are lining up to publish papers and speak about the ills of the patent system, and so called public advocates are attacking the patent system (when they, themselves, were acting as trolls only a short time ago by bringing the patent-marking suits that clogged the system). One notable example occurred in June, when President Obama's spokesman Jay Carney stood in the White House Press Room with a "patent troll" cartoon having a red line across it, announcing from the podium that the President was launching an anti-troll initiative and issuing Executive Orders to cure patent system ills.

But the announcements, and pronouncements, made by the White House and others often have been made in the absence of reliable fact. In an effort to determine what is fact versus hyperbole, AIA included a provision requiring the US Government Accountability Office (GAO) study the subject. That study report indicated that while those steering the public dialog were saying that most patent lawsuits were filed by "trolls", in reality non-practicing entities filed less than 1 in 5 patent suits between 2007 and 2011. I encourage you to read the study for yourself, it rebuts many of the anti-troll arguments that have been made to attack the patent system. To be clear, it does not say there is a no problem but it puts the issue in perspective and from there it becomes clear why a minority is pressing the offensive to attack the IP system as a whole.

In light of all this, it seemed to me that what we as an Association needed to do was increase public education of intellectual property. "Taking IP to the people" became a mantra for my year. One easy step was to increase the American observance of World IP Day. World IP Day is an annual celebration of the World Intellectual Property Organization founding, the United Nation's agency dedicated to intellectual property as a means of stimulating innovation and creativity. It occurs on April 26 of each year, on the anniversary of WIPO, and is literally celebrated all around the world. Traditionally, AIPLA participated in celebrations in the Washington, DC area – on Capitol Hill, at the Copyright Office, and at the Patent & Trademark Office – but this year we changed that by promoting World IP Day around the country and partnering with various organizations across the country. Those celebrations still included Washington, DC, of course, but they also took place in Charlotte, NC; Dallas, TX; Denver, CO; Detroit, MI; San Jose, CA; and New York, NY. The celebrations were as varied as the locations, addressing fashion law, trademarks, licensing, high technology and even movie making, featuring two documentaries including one by an 11-year old filmmaker who presented his documentary "Yuk: A Fourth Grader's Short Documentary About School Lunch." (When the Registrar of Copyright presented his copyright registration to him, he told the crowd he was looking forward to cuddling it.)

But that is only the first step, and AIPLA cannot do it alone. We as an association need to coordinate our efforts with the other organizations because it is very important that the public perception of the intellectual property be corrected. Currently, there are a number of organizations that want to increase public knowledge of intellectual property, but we need to work together. At our recent September retreat the AIPLA Board endorsed continued efforts on public education and we will continue to do more.

While we have a lot of intellectual property issues to address here in the Untied States, I also have had the opportunity to represent American IP interests around the world. I have visited more than a dozen countries on five continents in the last 12 months, and in each I have found uniform admiration and support for the American system. Representatives in those countries have asked where the American IP system is going, however, because they too see the destructive nature of the current events in our country.

One thing these meetings have highlighted is that there are many common IP issues, both being experienced in each of these countries and globally. Our works together on such things as the Global Dossier, Industrial Design and harmonization are too detailed for this column, but have been an important part of our international meetings. One topic that is worthy of highlighting, is that in June AIPLA co-hosted a meeting of 22 countries to discuss issues of international client confidentiality, i.e. attorney-client privilege, during patent prosecution. It is a major problem for multi-nationals and for those pursing international IP protection. As a result of this colloquium, where government and bar representatives debated various issues underlying confidentiality, a joint proposal has been developed that balances the interests of all countries represented and work is moving forward to develop an international agreement.

In closing, I would be remiss if I did not note the key role that AIPLA's committees, Board of Directors and professional staff play in these and other issues. Each, both separately and working together, is the lifeblood of our Association. They continue to amaze me at their hard work as well as the collective breadth of knowledge and creativity. I have been honored to work with people who truly are the best and brightest in our profession, and I thank you for the privilege of serving as AIPLA's President and representing your interests.

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