Myra McCormack took over from Mark Whitaker as AIPLA president for the next year at the association’s annual meeting in October. She is the seventh woman to serve as AIPLA President, and the third woman president from a corporate practice.
McCormack is associate patent counsel at Johnson & Johnson, where she has worked since 2000. She joined AIPLA in 1995 and has done stints on the Professional Programs Committee, the Board of Directors (from 2004 to 2007) and the AIPLA Fellows.
“It is a great organisation,” McCormack says, as she explains why she is proud to be taking over as president. “I think AIPLA is unique among IP associations because of its independence and focus on the voice of individual members. While this means there are lots of opinions coming together that are often disparate, AIPLA has a great way of condensing those disparate views into positions of advocacy for the intellectual property system. The strength of AIPLA is that it brings the best minds to the table to create reasoned solutions. We have always said we have credibility on policy matters in part because we have this diverse membership.”
Seeking consensus on Section 101
One example of AIPLA reconciling disparate views has been its work on patent eligibility under Section 101 of the Patent Act.
AIPLA executive director Lisa Jorgenson believes Section 101 problems remain the number one issue on members’ minds.
“Our members tell us that the Section 101 issue is still the most important issue for them,” says Jorgenson. “They are very concerned about the current uncertain state of the law. We believe this has discouraged investment in US-based research and development activities.”
McCormack agrees completely. “I have a background in biologics, and Section 101 has been a challenge for those of us in the pharmaceutical world, particularly when we are talking about diagnostics or methods of treatment,” she says. Her term as President comes at a time when AIPLA and other US IP trade groups are calling for a legislative fix to the problems of patent eligibility.
Jorgenson says Section 101 was not intended to provide the standard for deciding whether a particular technical advance should receive patent protection. AIPLA and two other IP associations, independently concluded that a legislative change is needed to fix the Section 101 problem, and this year AIPLA published a report and proposed amendment.
“AIPLA’s goal is to provide more clear guidance to the Patent Office, the courts and the innovation community that can be consistently applied to all technologies including those that we cannot yet predict,” says Jorgenson. “We know that legislation in a very complex area such as this is not going to be easy. But the law of subject matter eligibility really needs to be more stable and predictable, and the best solution is a comprehensive legislative fix to address the problem.”
But it is a long process – it took years to get to this point, according to McCormack.
“We coalesced ideas, and presented it to the Board, and created an initial Board position,” she says. “In my year as President we will have a smaller functioning group relating to statutory changes to patentable subject matter. Hopefully, we can find a position that has support across the major IP organisations as a way to persuade Congress of the need for a change. That is a long process. I think we did a good job as an organization coming to that consensus.”
AIPLA has been as busy as ever on judicial advocacy. It filed seven briefs in the past 12 months in both the Federal Circuit and Supreme Court. In the pending Oil States v Greene’s Energy case, the Supreme Court will assess whether inter partes review violates the Constitution by extinguishing patent rights through a non-Article III forum without a jury. AIPLA argued that IPRs do not violate the Separation of Powers or the Seventh Amendment.
“Our brief acknowledged that Separation of Powers decisions have assigned private property issues to Article III courts, but we argued that this is not dispositive of when issues are properly before Article I tribunals,” says Jorgenson. “AIPLA affirmed in the strongest terms that patents are a private property right that are fully transferrable commodities, and we argued that the proper criteria for this case is the source of the right — a detailed statute enacted by Congress — not the character of the right in question,” says Jorgenson.
“The issue in the case is really whether you can still be in front of the PTAB, an Article I court, and our belief is the answer is yes, based on the AIA. I think there was some confusion over whether people believe that patents were private property rights, and of course they are. We just felt that was not dispositive of the case.”
McCormack notes that many want changes to the IPR system because their patents can face multiple challenges under the current scheme.
“But AIPLA has to take disparate voices into account,” she says. “So under that paradigm, AIPLA becomes a great advocate for finding the right balance between ensuring that an issued patent is valid and well examined, and ensuring that you are not just setting up a big fish in a small pond so that so many shots into the barrel are ultimately going to kill it.”
McCormack has a few ideas already for goals to achieve during her term. She is thinking at a local level. “I have a big interest in making sure that I am doing my part to see that AIPLA is a healthy organization that can go forward robustly into the future,” she says. “Membership is critical and we need to find ways to advocate for all of the good things that AIPLA can provide to the IP practice. It is really important to make sure that we are doing a great job of getting those messages out.”
She says AIPLA is going to launch a geographically-focused initiative. This may involve on-the-ground work with local IP associations. “Or it may require thinking of new ways to cross pollinate efforts at the local level and hopefully raise awareness of what AIPLA is doing at the national level,” she says.
McCormack is thinking about ways AIPLA can create a local presence in some specific geographic regions. “My next step is really to think about how we can be more active in a particular location where there is a healthy population of IP attorneys. That may involve a brown bag lunch sitting around a table or informal cocktail hours, bringing the benefits of an AIPLA meeting to the local level with networking.”
McCormack is also looking forward to the travel in her term as President: “Hopefully, in the Spring I will be going on at least a few of those trips, which I haven’t done that before because I travel a lot for my work. So I am looking forward to being an advocate for AIPLA outside the United States. I think that is a great honour.”
AIPLA has also taken steps to make their committee’s decision-making process more efficient. The Board last summer went through a process of evaluating its strategic plan. At the end of that process the Board adopted new guidelines, which it is now using to work with its more than 60 committees to help them evaluate projects.
“This year that process alone has really helped us become more efficient in evaluating projects, getting them ready for primetime, allowing us to be more flexible and a lot faster in developing AIPLA’s positions,” says Jorgenson. “That is a key project we have had in the background here.”
The Association has continued to grow some of its activities. For example, its Women in IP Law Committee global networking event was the biggest yet this year. Simultaneous networking dinners took place in about 60 locations in 25 countries in May.
The Association has also benefited from more modern headquarters. This includes a new state-of-the-art meeting space dubbed the Past President’s Conference Center where the associations has hosted programs, such as the ninth annual Trademark Boot Camp and the Patent Cooperation Treaty (PCT) workshop. AIPLA is also undertaking a major project to update and improve its website, which should be rolled out within the next 12 months
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