Technology transfers in the patent world are often referred to as assignments or licenses depending on the degree and severability of the interest being exchanged. Our current patent system encourages the disclosure of ideas— with a policy regime that seeks to balance incentivizing with serving the public interest and continuing the development of ideas, processes, designs, and plants. Institutions known for developing products, ideas and research commonly advertise the social boons of their hard work. Government agencies, research universities, and start-ups claim to devote their resources and ingenuity to benefiting the world. It is somewhat rare for researchers to develop ideas without interacting with other scientists or organizations, outside of isolated skunkworks, a concept that seems increasingly maligned. Indeed, one can download a form to license a patent from NASA. Provided one is willing to produce products domestically, an exclusive license costs $50,000 and average annual royalty fees range from 3-7%. The FDA regularly develops and licenses its own patents, some of which made award-winning impacts on public health. Recent collaborative development of a meningitis-A vaccine has protected hundreds of millions of people in sub-Saharan Africa from deadly disease. Agencies and corporations are encouraged to embrace cooperative R&D agreements, and make provisions and processes for transfers of material intellectual property. Some examples of agency specific programs include Technology Investment Agreements, Biological Materials Licenses, and Partnership Intermediary Agreements, all designed to induce and speed the process of collaborating among institutions. Research universities consistently produce developments that migrate into the public sphere through the patenting process. “Publish or perish” is the mantra of many academics, and fights for funding can be bitter and political. Resource allocation among research universities is tightly bound to its winning departments, but arguments for change are gaining sway. If just a few percent of research budgets were transferred to the development and technology transfer pipeline, this could create substantive benefits in the industrial and public health sectors. There is a realm of forbidden arts in the innovation industry, where corporate secrets are leaked, patent trolls stymie productivity, governments unfairly subsidize research and corporations are forced to sign over their methods in exchange for access to markets. For example, throughout classical antiquity, Chinese imperial authorities and their client states were often credited with guarding the state secrets of silk production technology. Conversely, in the past few years, the Chinese multinational corporation Huawei has been in talks to freely disclose its 5G technology, patents and trade secrets. Nowadays, it is the U.S. using export controls to limit technology transfers to competitors, with inconsistent results. Indeed, despite such restrictions, Huawei has been able to acquire billions of dollars in technology licensing from U.S companies—and billions of dollars in semiconductor components. The goals of different institutions and governments are clashing against rigid intellectual property laws, corporate interests and public interest. An emerging landscape of intellectual property mercantilism is revealing itself in an environment where innovation and global strategy conflict. --Andrew J. Ladenheim, 1L UNH Franklin Pierce School of Law
0 Comments
This article is contributed by Lea Polito, a 2L at UNH Franklin Pierce School of Law. In order to practice before the United States Patent & Trademark Office in a representative capacity, one must pass the USPTO Registration Exam, also known as the Patent Bar Exam. Only those with a bachelor’s degree or equivalent training in a technical field are eligible to take the exam. Upon passing the exam, a person is registered as a Patent Agent and may represent clients before the USPTO in the prosecution of patents. Thus, passing the Patent Bar is necessary for all patent attorneys who wish to work in patent prosecution. For patent attorneys solely practicing in litigation, passing the patent bar is not required; as such, attorneys without the requisite technical background may still work in patent litigation. Passing the exam is considered a significant accomplishment due to the difficulty of the exam, as demonstrated by the low passing rate. Thus, passing the exam can be a valuable addition to your resume, and is a great way to indicate an interest in patent law to future employers. I decided to share my experience with studying and passing the Patent Bar as a 1L student, as well as my reflections on whether or not it is generally best to take the exam before entering practice. I fully acknowledge that everyone learns and studies differently, so I cannot guarantee that my approach will work for everyone, nor do I claim that my approach is the best or “right way” to study. However, I’m hoping that this post may provide a starting point for current and future UNH law students in making an informed decision on whether or not to take the exam. I graduated with a bachelor’s degree in biomedical engineering in May of 2020, so I had the requisite technical background to take the exam upon graduation, but no prior knowledge of patent law. While attending Admitted Students Day at the law school earlier that spring, I learned that the school often runs group discounts for PLI’s Patent Bar prep course, which is highly regarded and can greatly improve the chances of passing the exam. With little to do that summer given that we were in peak COVID lockdown, I decided to study for the exam shortly after graduating, and I planned to take the exam right before starting law school.
Generally, I had a very positive experience with taking PLI. I worked through the course by reading the study guide before watching the corresponding lectures. I found that the repetition between reading and then watching the lectures, albeit time-consuming, really helped commit the material to memory. While reading, I made flash cards of all of the exam points that were written in boxes or otherwise flagged as important in the study guide. I also made a document where I kept track of every question from the study guide and the practice exams that I got wrong, and wrote explanations for why my answers were wrong and why the correct answers were better. For me personally, I found this method of studying through repetition, memorization, and reviewing my wrong answers in detail to be very effective. I took the exam right after Labor Day in 2020, so I studied for about three and a half months. I worked a part-time retail job on the side, so I estimate that I studied part-time as well, averaging about 20 hours per week. I suggest tailoring a study schedule around your individual circumstances. For example, I think it is definitely possible to pass the exam by studying more hours per day over a shorter time period, perhaps a month or two. I think it’s also feasible to pass the exam while working full-time, as long as you allow yourself to study over more months in order to make up for shorter time blocks of studying per day. If one thing is for certain, it’s that taking the exam is not a fun experience, so try not to rush with studying and take as much time as you need to pass on the first try. From my experience, there are both pros and cons of taking the exam early on in law school. Passing the exam before applying to summer internships was a huge advantage in getting my resume noticed by employers, and I highly doubt that I would have gotten my summer position without it. Also, studying for the exam was a great way to transition from studying engineering to studying law. My patent bar studying was really useful for learning to read statutes and regulations for the first time, and I gained a solid background understanding of patent law that has helped with the patent courses I have taken thus far. It’s also nice to have it out of the way early, so that I can solely focus on passing the regular bar exam after graduation. However, taking the exam later can have benefits as well. For example, many attorneys at my firm think that waiting to take the exam until after gaining some practical experience makes the exam much easier. One attorney in my group passed the exam after studying over the course of a week-long beach vacation in Florida because he already had extensive knowledge of patent law from his practical experiences clerking and working at the firm. Additionally, the PLI course and exam fees are extremely expensive, and many employers are willing to pay for these expenses if you wait to take the exam until after entering practice. Finally, given that the exam is a huge investment and time commitment, I recommend waiting to take the exam until you are absolutely certain that you want to work with patents, particularly in patent prosecution. To summarize, my answer to the question “When, and how, should I go about studying for the Patent Bar?” is the classic law school answer: it depends. This article is contributed by Lea Polito, a 2L at UNH Franklin Pierce School of Law.
CRISPR stands for “clustered regularly interspaced short palindromic repeats.” A form of genome editing technology, CRISPR sequences can be used to identify and target specific sequences of DNA that control the expression of certain genes in an organism’s genome. Cas9, one of the enzymes produced by the CRISPR system, can bind to and cut the CRISPR target sequence, like a form of genetic scissors. As such, the use of CRISPR-Cas9 technology can allow for the insertion of helpful genes and the deletion of harmful genes from a genome. Although the use of CRISPR-Cas9 technology remains highly controversial, especially in the area of human gene therapy, the application of CRISPR-Cas9 technology within the agricultural sector has the potential to alleviate food insecurity through the introduction of favorable genetic traits to plant genomes, such as traits that increase crop yields and pathogen resistance. Globally, the patent landscape of CRISPR technologies is highly fragmented, with the U.S. and China leading in the total number of patent families relating to the CRISPR gene-editing system. According to a study published in Nature, China and the U.S. also lead in the number of plant patent families relating to CRISPR technology as of 2017 (see Fig. 1), with the total number of CRISPR plant patent families decreasing by over 50% when comparing China to the U.S. and to Europe respectively (see Fig. 2e). Unsurprisingly, these trends in CRISPR plant patents mirror the regulatory stance of each country with regards to the ongoing genetically-modified organism (GMO) controversy. While China and the U.S. have regulatory regimes that allow for commercialization of certain gene-edited crops, the EU essentially banned gene-edited crops from the market in a highly-criticized decision by the Court of Justice of the European Union (CJEU) in 2018. Given the unfavorable market for gene-edited crops in the EU, it is likely that the EU will continue to lag behind the U.S. and China in patents granted that relate to CRISPR technology in plants. The country-by-country variation in patent and regulatory regimes poses a challenge in implementing CRISPR technology in areas with high food insecurity. This summer, I had the opportunity to work on a pro-bono project for the African Orphan Crops Consortium (AOCC). The project involved researching patent and regulatory considerations in various African countries, with the goal of compiling our findings into a centralized resource that can be used to inform African plant breeders about relevant patent and regulatory concerns in their respective countries as they research CRISPR technology in crops. While working on the AOCC project, I was surprised to learn that even neighboring African countries had completely opposite regulatory regimes for CRISPR-edited crops, with some having favorable regulations for conducting field trials, and others imposing de facto bans on CRISPR research. The implementation of CRISPR-edited crops in areas of high food insecurity is further complicated by the ongoing dispute between the Broad Institute of Cambridge and UC Berkeley regarding ownership of patent rights for claims pertaining to the use of CRISPR in eukaryotic cells. As long as this dispute continues, the prospect of a joint licensing agreement between the major players in the CRISPR patent landscape that would eliminate patent hurdles for food-insecure countries to research CRISPR technology seems farfetched. There is an underlying understanding of avoiding product-by-process claims, which prompted me to research whether a product-by-process claim has any benefits. A product-by-process claim is a specialized type of apparatus or composition claim that defines a product in terms of the process by which it is made. In other words, a product-by-process claim is a claim to the product itself. Further, the MPEP states, “even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself.” MPEP 2113. In other words, a product defined by a product-by-process claim infringes that claim only if the competitor uses the same method to produce it. Abbott Labs, 554 F.3d at 1389. Regrading patentability, a product-by-process claim is unpatentable if the product is in the prior art, even if the process steps recited in the product-by-process claim are new. Id. Because product-by-process claims are very limited in their applicability to an invention, it is unclear what benefits are derived from utilizing product-by-process claims. A common benefit, a plurality of articles recited, is that product-by-process claims permit an applicant to claim an invention that could not otherwise be adequately defined. Citation omitted; Citation omitted. However, this benefit is significantly truncated because the applicant bears the burden to establish the novelty between the claimed product and the prior art product. Citation omitted. Additionally, product-by-process has a narrower scope of protection to stop infringers—the product must be made by a process recited in the claim to infringe a product-by-process claim. Citation omitted; Citation omitted. Randy Nguyen is a current 2L at UNH Franklin Pierce School of Law. This month's article is contributed by Ted Rand, a 3L at UNH Franklin Pierce School of Law.
On December 28, 2020, the United States Federal District Court for the Eastern District of Texas (E.D. Texas) granted the issuance of a temporary restraining order against Samsung in a lawsuit filed by Ericsson on December 11, 2020. The emergency ex parte temporary restraining order and anti-interference injunction (i.e., an “anti-anti-suit injunction” or “AASI”) come in response to an anti-suit injunction (an “ASI”) issued by the Wuhan Intermediate People’s Court of China court early on Christmas morning. The ASI from the Wuhan court sought to prevent Ericsson from seeking injunctive relief on its 4G and 5G standard-essential patents (SEPs) outside of China. While the suit’s specifics are tantalizing and controversial (Ericsson claims to have not received notice before the ASI issuance, and neither company has headquarters in China, for starters), this article aims to take a step back and think about how we got here. Particularly in the age of “standards wars” over SEPs relating to 4G, 5G, and other globally ubiquitous technological standards, a procedural mechanism for preventing parallel litigation over these globally essential patents has been on the rise. The History of Anti-Suit Injunctions Anti-suit injunctions prohibit litigants from initiating or continuing parallel litigation in a different jurisdiction. The practice is not new. As early as the 15th century (and possibly even earlier), English courts would issue “writs of prohibition” to prevent other courts in the country from expansively asserting jurisdiction. First, England’s common law courts issued these writs against ecclesiastic courts (i.e., court Christian or court spiritual). Then the Court of Chancery invoked them to prevent litigants from bringing common law cases in bad conscience. At some point, the practice of issuing these writs (which later came to be known as ASIs) extended to halting proceedings in foreign countries. In recent centuries, ASIs have been used mostly by the U.S. and the UK and looked upon with civil law countries’ disfavor. However, as parties increasingly invoke the procedural tactic in litigation over SEPs and fair, reasonable, and non-discriminatory (FRAND) licensing commitments, countries like France, Germany, and China, among others, have joined in on the practice. The Benefits of Anti-Suit Injunctions and the Gallo Framework At this point, you may be asking how courts can justify issuing ASIs, which appear at first blush to be a protectionist ploy to keep cases within a particular jurisdiction. The reality is not so simple, and courts are often reluctant to issue such an “extraordinary remedy.” There are material benefits to the use of ASIs. While some scholars have described the standard as “ambiguous and fragmented,” these benefits can be neatly illustrated by walking through the three-step framework outlined in E. & J. Gallo Winery v. Andina Licores, 446 F.3d 984 (9th Cir. 2006), where the Eastern District of California denied a wine distributor’s request to enjoin Ecuadorian litigation. While other countries follow different standards for issuing ASIs, the core criteria are roughly equivalent. Gallo Factor (1): whether or not the parties and the issues are the same in both the U.S. and foreign actions, and whether or not the first action is dispositive of the action to be enjoined. One of the main benefits of ASIs is that they can reduce duplicitous litigation. Patent litigation has become one of the most gamified corporate warfare forms for high-tech companies with global patent portfolios. One way to cause maximum pain for a competitor is by forcing the competitor to incur litigation costs in multiple forums. The critical determination that a court must make at this stage of the analysis is whether the litigations are “functionally equivalent.” Importantly, functionally equivalent parties can include members of the same corporate family even if based in different jurisdictions. Applied Med. Distrib. Corp. v. Surgical Co., 587 F.3d 909, 915 (9th Cir. 2009). Gallo Factor (2): whether at least one of the Unterweser factors applies. After making an initial determination as to whether each forum’s actions are “functionally equivalent,” courts next look to the factors set out in In re Unterweser Reederei Gmbh, 428 F.2d 888 (5th Cir. 1970). Under the Unterweser factors, U.S. courts analyze whether an ASI is proper by determining whether the foreign litigation would:
Another factor that courts will consider in determining whether the Unterweser factors apply is whether a forum selection clause or other contractual obligation exists that would support an ASI issuance. Even in the absence of such a contractual obligation, a court may find that parties “indicated their desire that [an] action should result in a ‘global resolution.’” TCL Comm. Tech. v. Telefonaktiebolaget LM. Ericsson, et al. (C.D. Cal. 2017). The contractual issues that continue to murk the waters of FRAND licensing exemplify why the actions have become so common in the legal landscape of SEPs. For instance, in Microsoft Corp. v. Motorola, Inc., 696 F.3d 872 (9th Cir. 2012) (known as “Microsoft II”), the Ninth Circuit issued an ASI against Motorola’s attempt to seek injunctive relief in Germany. The Ninth Circuit determined that regardless of whether and how the parties calculated a FRAND royalty, Motorola’s contractual commitment to various Standard Development Organizations (SDOs) was incompatible with seeking the German injunction. Notably, in a somewhat similar circumstance, a court denied an ASI when the party bringing the suit was not the SEP licensor. In Apple v. Qualcomm, the Southern District of California denied issuing an ASI, in part because “Apple, unlike Motorola and Qualcomm, ha[d] made no binding commitment that limit[ed]” seeking relief jurisdiction-by-jurisdiction. Apple had filed suits in the U.S., UK, Japan, China, and Taiwan, alleging complaints related to Qualcomm’s licensing practices of its SEPs for 3G and 4G standards. Gallo Factor (3): whether the injunction will have a significant impact on international comity. “Comity of nations” can be defined as “the courtesy and friendship of nations marked especially by mutual recognition of executive, legislative, and judicial acts.” In a recent LinkedIn post, former Federal Circuit Judge Randall R. Rader observed: Too often anti-suit injunctions and anti-anti-suit injunctions are used in an effort to acquire some procedural leverage in global patent litigation. As these lawyerly tactics become more common place, they lose much of their perceived advantage. Meantime courts and judges trumpet the supremacy of their own expertise and power over disputes. Are these tactics having any long-range effect beyond shredding principles of comity? (emphasis added). And indeed, many scholars share Rader’s concern that the potential benefits of ASIs do not outweigh the disrespect they convey to the foreign court enjoined. For instance, the UK Supreme Court has recently ruled on several FRAND issues related to standards governed by the European Technology Standards Institute’s (ETSI’s) IPR policy. The UK court in Unwired Planet v. Huawei ruled it appropriate for the Kingdom to set worldwide FRAND rates. France’s laws govern the ETSI, and France has notably experienced friction with the UK due to Brexit negotiations. Germany has also thrown itself into the fray in resolving how the interpretation of ETSI’s policy in FRAND disputes. Some scholars are concerned that these external factors may exacerbate the use and effect of ASIs in FRAND disputes to be harmful to the countries’ international relations. Stateside, there has been jockeying between courts like E.D. Texas and courts of China, a country that is notably at odds with the U.S. on issues such as securities regulation and data privacy. There is a growing concern that as more countries’ courts become entangled in ASI rulings, the practice will become global and widespread. Indeed, one scholar noted that it was “entirely predictable” that China would begin jockeying for jurisdiction over SEP litigation, as there is no logical reason why the U.S. and UK courts should be the exclusive venues for resolving the disputes. “Anti-Conclusion”: Is it ASIs all the way down? As Professor Jorge Contreras noted in a July research publication: “If there is no theoretical limit to the procedural machinations to which parties can go in [ASI] disputes, it may, indeed, be injunctions ‘all the way down.’” One can observe, for instance, the dispute between Samsung and Ericsson discussed at the beginning of this article. There is little logical reasoning that the Wuhan court will not issue an anti-anti-anti-suit injunction (AAASI) based on the procedural posture and the logic in each of the previous opinions. The question is, where does it all end, and what will result from this “procedural ping pong” to determine what a fair and reasonable royalty for SEPs is? This month's article is contributed by Ivy Attenborough, a 1L at UNH Franklin Pierce School of Law. Furby Few toys have captured the attention of millions for years after their release as the Furby. Created by a former Mattel designer David Hampton, his former coworker Caleb Chung, and marketing executive and hobbyist inventor Richard C. Levy, the toy was inspired by a digital version of an interactive pet called a Tamagotchi. From their release in 1998, they were an instant hit--40 million were sold within three years. At a price of $35, they reached at least $1 billion in sales by 2000. Moreover, over $60 million in sales were generated in the first year of their release—in the final two months of 1998. The origin of Furby’s as an iconic toy is even more impressive when viewed in light of its patent history. Comprised of 10 claims relating to interactivity, movement, and mannerisms, U.S. Patent No. 6,149,490 was filed just ten days before its first Christmas for sale and later assigned to Hasbro, Inc. The patent covers both the toy’s internal mechanisms and its outer shell, communication style, and communicative devices. A suit was brought against Hasbor, inc. for its Furby toy infringing five patented claims. However, the court in Dialware Commun., LLC v. Hasbro, Inc. stated that all five of the patents covered “abstract ideas of communication” with no inventive concept required by the two-part Alice Standard. As a result, the court invalidated the five claims at issue. The Furby patent reached its twenty-year expiration date in 2018. Barbie Millions of young girls owned both Barbies and Bratz, owned by Mattel and MGA Entertainment, respectively. The Barbie doll, U.S. Patent No. 3,009,284, came out in 1959; Bratz was released in 2001. However, both companies had many issues and serious accusations of former employees bringing their ideas, created in the workplace and underemployment, to another new employer. The legal battle between Mattel and MGA began with a victory by the owners of Barbie. In Bryant v. Mattel, Inc., the inventor of Bratz, Carter Bryant, and his employer, MGA Entertainment, were permanently enjoined from producing their dolls as they were found to infringe on the Barbie patent and copyrights. Moreover, they were ordered to recall and refund the purchase of every Bratz doll sold--$1 billion by 2003 alone—as well as turn over the IP of the Bratz doll to Mattel; $10 million in damages to Mattel were also awarded. Mattel, Inc. v. MGA Ent., Inc. vacated the prior judgment; in fact, the Ninth Circuit came to the opposite conclusion. The district court found that MGA Entertainment had used illegitimate business practices and infringing use of intellectual property, but the circuit found that Mattel was the party involved in trade secret theft. Not only did the circuit court vacate the award of damages and injunction from the first suit, but it awarded MGA Entertainment over $300 million in damages, later reduced to about half. The result of the MGA Entertainment win was solidified when a rehearing was denied in October of 2010, as the result of a 3-year statute of limitation for trade secrets. Many realms of IP intersect in these massive cases because trademarks, copyrights, trade secrets, and patents were all potentially at stake. This month's article is contributed by Lea Polito, a 1L at UNH Franklin Pierce School of Law.
It is difficult to envision a field that has remained unscathed by the COVID-19 pandemic, and patent prosecution is no exception. In response, the USPTO has provided assistance to the inventors and entities hit hardest by the pandemic. The USPTO extended CARES act relief for small and micro entities by providing extensions for the payment of filing fees, issue fees, maintenance fees, and others that were originally due at the end of March until the end of September. The USPTO also granted extensions of time to restore the priority date of filings delayed due to COVID-19 through the end of July, a critical step in securing inventors’ rights facing unforeseen economic hardships. Also, the PTAB has been flexible in granting extensions of time during proceedings on a case-by-case basis. For example, in Unified Patents v. Qwikcash, an ongoing inter partes review, the PTAB granted a thirty-day extension of time for Qwikcash’s preliminary response. No. IPR2020-00972, 2020 WL 5498941 (P.T.A.B. Sept. 11, 2020). Qwikcash is a small entity managed solely by a seventy-nine-year-old inventor who was unable to file a timely response because he contracted COVID-19 and was still recovering. Many incentives and issues exist in patenting COVID-19 technologies. The USPTO recently announced a deferred fee provisional patent application for small and micro entities for inventions that combat COVID-19. This is contingent on the applicant’s agreement to publish the subject matter disclosed in the application on the USPTO’s website in an effort to promote and circulate the information to the public-encouraging innovation while protecting patent rights. For larger entities working toward a COVID-19 vaccine, there is a complex balance between granting access to patented COVID-19-related technologies to allow for collaboration in vaccine development while also providing incentives for companies to continue to develop and patent new technologies. Additionally, allowing companies to retain their patent rights encourages profit-motivated innovation. However, licensing issues can create barriers in granting public access to vaccines and treatments, which is particularly problematic for low-income countries. With the recent news of the potential effectiveness of Pfizer’s vaccine, it will be interesting to see how the access versus incentives dilemma is resolved. With the majority of Americans working remotely, there has been an influx of patent applications for work-from-home (WFH) technologies. A recent UChicago study sought to quantify the increase in WFH patent applications. The researchers examined the XML files of patent applications for key terms defined in a word bank in order to extract the number of WFH patent applications from a data set of about 3.5 million filings over the past ten years. Notably, the study suggests that from January to May 2020, the share of patent applications in the data set pertaining to WFH technologies had almost doubled, from about 0.53% to about 1.03%. This increase is likely a reflection of the increased demand on large suppliers of these technologies as well as working-class inventors creating their own solutions to the everyday inconveniences faced in their home offices. COVID-19 has stalled the number of utility patents granted to an extent, but as of July, 2020 is still likely to fall in the top five years with the highest number of utility patents issued. In looking at the long-term impact of the COVID-19 economic recession on patent prosecution, comparisons to the Dotcom Bubble recession from 2000-2002 and the Subprime Mortgage Crisis from 2007-2009 may be useful. Under stable economic conditions, there is an average yearly increase in the number of patent applications filed by about 18,000 each year. This increase still occurred in the first year of both recessions but then became static. From the beginning to the end of both recessions, there was a 7-8% total decrease in the number of applications filed, and it took about five years after both recessions for this number to rebound. The number of abandonments per year sharply increased in both recessions and peaked at a 21.8% increase in 2002 and a 30.7% increase in 2009. If the COVID-19 recession follows the trends from these recent recessions, there probably will not be an apparent impact on the number of applications and abandonments for at least another year or two. The government aid provided in the CARES act and the USPTO’s flexibility may help mitigate the adverse effects that the COVID-19 recession will have on patent prosecution. However, given the uncertain duration of the pandemic, it is unclear as to whether the COVID-19 recession will follow any sort of trend at all. My name is Tyler Baylis and I am currently in my second full month of 1L year at UNH Franklin Pierce School of Law. I intend to specialize in patent law. I took a year off between graduating with a biology major from Umass Amherst in 2019 and starting law school to do construction. I decided to study patent law because it allows me to retain and utilize my undergrad degree while not having to spend my life working in a lab. The field of law is more flexible and allows me to be creative to achieve the results I need. While I did take a couple of law classes in undergrad, I really had no law experience going into law school. Coming into my 1L year, I had a precognitive expectation of what law school entails.
With a heavy focus on biology throughout my academic life, I had done a fair share of scientific reading in my time. I was sure that if I could understand complicated topics like the necessary maintenance of harmful recessive mutations in a gene pool (such as sickle cell anemia) from reading, I would be able to understand legal reading. Unfortunately for me, scientific reading, even at the highest level, was not enough to prepare me for law school reading. Scientific reading is relatively easy for me; you can get away with reading the topic sentences, the bolded texts, and the diagrams provided to distill the topic’s underlying theme. Legal reading, however, is different. In most classes, we read cases which deal with the legal principle the professor wishes to discuss. Not only do you need to understand the facts of the case, but you need to ascertain the key points relevant to the legal principle being discussed. As opposed to scientific reading in which you can decipher at a rather quick glance, legal reading is far more intensive, and each page demands a high level of attentiveness. Needless to say, my expectation that law school was a lot of work appears to be accurate. Additionally, I expected law school to take the same approach as the course load of my undergrad did; for example, I would start out taking the equivalent of general education to get my legal footing. I then would start to focus on patents by my second year. To my surprise, however, I was able to learn a bit about patents as soon as the start of the semester. We have a class that teaches legal research, and how to navigate the legal research databases, both tailored to IP. Patent students learn to research through patent related topics, trademark, and soft IP students learn via researching trademarks and etc. This not only gave me a basic introduction to the patent world, which I did not expect to get, but it also introduced me to my fellow patent law students, who I will spend the next few years learning with and potentially working with after. I am far from an IP expert after only two months of my patent tailored research class, but I am more experienced and exposed to the fundamental patent law concepts and terms than I thought I would be after only a few months into law school. A discussion of my first few months of law school in 2020 would be incomplete without discussing the viral elephant in the room. I initially toured and applied to UNH Law in 2019, so my expectations about the day-to-day law school life were a little different from the reality of school in a pandemic-ridden world. I was excited to be on campus, meet new people, and get engaged in the patent community via luncheons, guest speakers, and other patent related events. However, Covid-19 has checked those expectations. One of the big draws to UNH Law for me was the IP program. When combined with the small class size and diverse, talented IP groups, our nationally ranked IP program seems like the perfect way for any prospective IP student to both network for the future and gain the necessary skills to do the work in the present. While the classes teaching us IP topics has not changed, our access to peers has. Unfortunately, it’s harder to get to know a square on a Zoom call than it is a person sitting next to you in class. Except for my fellow patent students in my research class, it took me a long time to view the other “boxes” on Zoom as my classmates. Even now, there are some students whom I do not share any classes with, and likely would not even recognize their name since we have fewer opportunities to meet. That makes things like student organizations, for example, the PLF for patent students and SIPLA for general IP students, essential as they not only introduce you to people, but they introduce you to the right people who share the same interests as you. This month's article is contributed by Keith Kevelson, a 3L at UNH Franklin Pierce School of Law.
Patent Law faces an image problem today. Large numbers of scientists and engineers see patents in the most negative light imaginable; they see them as tools of predatory monopolists at large companies. Sadly, the purpose of patents is the exact opposite: we have patents for small businesses and independent inventors to protect their innovations form the large industrial giants. This was not always the case. A century ago, patent attorneys like Jake Harness would rush to develop patent strategies for a nascent Maxwell Motor Corp (later Chrysler) to help it withstand onslaughts from established giants such as Chevrolet and Ford. There is one life and career from this bygone era that stands out in reminding us how Patent Law helps: the life and career of Alfred Lee Loomis, which is too long and important to be described in one entry. Loomis grew up in a prominent family to say the least, and in those days in which major titans of business had become unquestionable dominant at the end of the Gilded Age in 1912, that meant there was an expectation to practice in white-shoe firms in Corporate Law. Initially, this is exactly what Loomis did as an associate at Winthrop and Stimson upon graduating Harvard Law School in the top of his class in 1912. At this time, large industrial companies, which were just beginning to be broken up, such as Standard Oil, were becoming loathe to patent because it had grown accustomed to simply crushing competition with industrial might(see F.M. Scherer, "Standard Oil as a Technological Innovator, page 5) and could rely heavily on trade secrets. Additionally, increased public opposition to trusts and monopolies was associated with opposition to patent licensing, as shown in the proceedings beginning with General Electric licensing lots of technology to Westinghouse in 1912 and culminating in the 1926 case United States v. General Electric Co. et al; 272 U.S. 476; (1912). Additionally, the public began to realize that many patents, especially medical device patents, of earlier eras were entirely bogus, and thus they began to associate patents with fraud. Also, Patent Law was a very different industry. Practitioners generally needed no formal credentials to prosecute patents during this period(Swanson, Kara W.; Technology and Culture, Jul., 2009, Vol. 50, No. 3 (Jul., 2009), pp. 519-548 ). Patent practitioners were often engaged in lengthy disputes with bar associations over what it meant to be a "patent artist", "patent practitioner", or "patent attorney," as many practitioners were informally-trained engineers with no formal education (Swanson, 523). Loomis changed all of this. As a citizen-scientist, a scientist without a doctorate or university employment, he began pursuing revolutionary scientific experiments on his own. Using his influence as a corporate lawyer, while also working in a ballistics lab during his service to our country in WW1, he would recommend critical reforms and regulations to patent practice to help independent inventors, counter monopolistic influences, and legitimize patent practice in the eyes of the law. He would also go on to promote incredibly important reforms to patent pooling and technology transaction law in order to facilitate the development of radar. While working on these legal reforms, he was also an important advisor to the Manhattan Project, although curiously, I am unable to determine if me made contributions to the Atomic Energy Act of 1952, a law that I have previously criticized on this site. By his death in 1975, the patent was the dominant means of technology protection in all industries. I am still trying to research if Loomis ever actually worked with Robert Rines at MIT during the WW2, but I haven't been able to find anything on that. The one thing that Loomis had that other lawyers lacked in his day was his love and commitment to citizen science. He was working as a hobbyist, tinkering with nascent wireless devices, and experimenting with early biomedical uses of soundwaves. This inquisitive nature belied a deeper quality that Patent Law needs if it is to have the public's respect and continue to contribute to our society: passion. Artificial Intelligence (AI) makes machines capable of learning from experience, or more so from data. In short, AI allows for machines to learn specific tasks through multiple exposures to processes, thousands and thousands of times. They are capable of dealing with massive data and able to possess smart algorithms to mimic traditionally human tasks. In the realm of patents, this begs the question: Can a machine legally be considered an inventor? In response to a petitioner's request to reconsider the USPTO's decision of refusal to vacate a Notice of Missing Part in U.S. Patent No. 16/524,350 , the USPTO strongly argued that AI should not be recognized as the inventor in a patent. The USPTO noted that, in 35 U.S.C., the law both explicitly and implicitly refers to inventors as “natural persons.” A couple of such instances include Section 101 stating “Whoever invents or discovers…,” where “whoever” suggests a natural person, and specific language in Section 112 where the law refers to "himself," "herself," "individual," and "person." The PTAB reasoned that granting inventorship to AI would contradict the patent statutes' text and spirit. With this reasoning, the Board affirmed the USPTO decision in denying the applicant request to vacate the Notice of Missing Part. For a full illustration of this subject matter, refer to this article on IPWatchdog. Randy Nguyen is a current 2L at UNH Franklin Pierce School of Law. |
Archives
November 2021
Categories |