Explore every episode of the podcast IPWatchdog Unleashed

This week on IPWatchdog Unleashed my conversation is with my friend Wen Xie. Many of you probably already know Wen. If you've been to IPWatchdog events, you've undoubtedly met her already, and you've heard her speak on our stage and in our webinars about various topics related to patent practice and procedure. 

Wen has more than a decade of experience as a U.S. patent attorney, and her specialty is with software and artificial intelligence (AI). She recently founded Lex Lumen Intellectual Property law firm, where she engages in representation with a client-centered focus that fuses digital modernity with a traditional patent practice. 

We begin our conversation by giving Wen an open mic opportunity to share her thoughts on the state of the industry, with me specifically asking:  What was on your mind as you drove to the studio today?

“You just asked me just now before we started filming, should we be afraid of AI,” Wen begins. “And my answer is there's no point in being afraid because it's coming… AI is coming in every profession, every technology."

After discussing Issac Asimov's three rules for robots, our conversation takes a turn toward innovation and patents. Can AI contribute originality at this point in its development that would be properly considered conception within the legal definition of inventing. We also discuss the importance of prompting, and how it can and should be used to streamline patent practice and drafting. 

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This week on IPWatchdog Unleashed we dive into patent eligibility waters, with a discussion on how patent attorneys and litigators alike can cope with Alice. Our conversation will triangulate the issue from the political perspective, from the perspective of a patent litigator who represents patent owners in federal court, and from the perspective of a patent attorney who represents clients as they attempt to obtain software patents.

Joining us this week is the Honorable Andrei Iancu, former Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. And as many of you no doubt know, Andrei was responsible for the 2019 Patent Eligibility Guidance from the USPTO, which has made it easier to obtain software patents from the Office, but which the Federal Circuit continues to ignore in favor of their own disjointed, unpredictable, non-repeatable test.  From the patent litigator perspective we have Vince Rubino, who is a partner with Fabricant in the firm’s NY City office, and from the patent prosecution perspective we have John Rogitz, who is Managing Attorney at Rogitz & Associates. 

I started our conversation giving an open mic opportunity for Andrei, Vince and John to jumpstart our conversation by giving me their big picture thoughts on 101. Andrei, who was unfortunately suffering from a bit of laryngitis, leads off.  

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To successfully monetize a patent portfolio, it is necessary to identify the value within the portfolio and to put in the work to prove to third parties and potential partners that that value exists. But even then, even when all the hard work has been done, after quality assets have been obtained, after evidence of use has been gathered and negotiations have begun, there are no guarantees.

This week on IPWatchdog Unleashed we enter the world of patent monetization, with a conversation about patent licensing and dealmaking—and of course the enforcement landscape. We also discuss the impact the Patent Trial and Appeal Board at the United States Patent and Trademark Office continues to have over the industry, and particularly the influence the PTAB exerts over patent monetization and dealmaking. 

Joining me this week are Russell Binns, the CEO at Allied Security Trust, Bill Geary, the Chief Strategy Officer at IDEAHUB, and Jonathan Rogers, who is Chief Operating Officer for cybersecurity leader Centripetal. 

As you hear the conversation unfold we discuss that deals are still getting done and although the value of the deals currently being consummated has not increased in 2025 compared with the last several years, the number of deals being done has dramatically increased, which could very well be the first sign of a bounce in the patent marketplace on the horizon. 

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This week on IPWatchdog Unleashed we enter the patent litigation world for a conversation about gaming the system. For too long popular sentiment has been that patent owners are bad actors simply because they are patent owners. 

Obviously, just being a patent owner does not make one a bad actor, and neither does enforcing a patent against an alleged infringer. But this patent troll narrative has been quite successful and has turned everyone who owns and enforces patents into an evil archvillain. 

Meanwhile, alleged infringers love to portray themselves as victims of unscrupulous patent trolls. So ineffectual is patent protection in the United States that the largest implementers who take products and services to market do not license patents, they simply engage in efficient infringement. 

To break through the generalities and get to the heart of the matter we hosted a discussion on June 3 between Katie O’Sullivan, who is Senior Corporate Counsel for U.S. Litigation at Renesas Electronics, Ben Herbert, who is a partner and co-lead of the Intellectual Property Practice at Miller Barondess, and Ben Weed, who is General Counsel for Ridge, the wallet company that sells primarily on Amazon and through other online platforms. 

We begin our conversation with my asking each for their initial, big picture, preliminary views on gaming patent litigation.

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This week on IPWatchdog Unleashed we speak with F. Scott Kieff, who is a former Commissioner on the International Trade Commission, and Joshua Hartman, head of Merchant & Gould’s ITC practice group. Our conversation, which took place on June 4, focused on the landmark ruling by the Federal Circuit in Lashify, Inc. v. International Trade Commission. Our conversation is wide ranging and touches on the politics and history of the ITC, which Kieff explains is quite important to keep in mind as we try and decipher this decision that was 40 years in the making really. We also discuss whether the decision fits within an America First philosophy, and whether the ITC is likely to become a more accessible forum for other small business patent owners. We begin with Kieff giving us his preliminary thoughts. 

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Ways to make a better patent system is a common theme at IPWatchdog, and we are going to get more seriously involved in that discussion over the next year as we try to bring thought leaders together for high-level, substantive conversations. And this conversation is the opening salvo in that effort. 

 Our panel really needs no introduction. All the members joining us this week are members of the IPWatchdog Hall of Fame. We start with Bob Stoll, is a former Commissioner for Patents at the United States Patent and Trademark Office, and among other things he is an expert witness. We are also joined by retired Chief Judge Paul Michel Hall of United States Court of Appeals for the Federal Circuit. The final member of the panel is Judge Pauline Newman, Circuit Judge on the United States Court of Appeals for the Federal Circuit. 

 The premise of the conversation is to identify solutions for a better patent system that would improve the current state of the system without empowering bad actors, such as patent trolls. I begin the conversation offering each of the panelists an open mic to start so they can set forth their preliminary thoughts. The conversation then evolves from there. 

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This week on IPWatchdog Unleashed we have a conversation that I've wanted to have for some time. The topic this week is quantum computers. It is quite a niche topic and finding people who actually know what they're talking about is not particularly easy, but this is an enormously important topic that we should all know something about because for Artificial Intelligence (AI) to achieve all its full potential we are going to need much better and much faster computers. And whether it is ultimately quantum computing or whatever comes next, quantum computers are going to be at minimum a bridge to go from where we are right now to where most in the public already think we are in terms of AI sophistication.

This conversation was recorded as part of our annual Artificial Intelligence program, which was held April 21-23 at IPWatchdog Studios. I was joined on stage in front of a studio audience by Robert Plotkin, and Robert is the founder of BlueShift IP. He's also written for us at IPWatchdog.com, and he is also an author. His first book was Genie in the Machine was published in 2009, and dealt with computer automated innovation. Most recently his new book AI Armorwhich deals with securing intellectual property protection for AI innovations, was published in 2024. Also joining the conversation was Sarah Schlotter, who is an attorney with Wolf Greenfield in Boston. Sarah is a member of the firm’s Electrical & Computer Technologies practice group, and she holds a PhD in applied physics from Harvard University.  Both Robert and Sarah regularly represent clients with respect to AI innovations, and particularly with respect to quantum hardware and quantum software inventions. 

We discuss one of the core mysteries of quantum mechanics, which says that a particle can exist in multiple states simultaneously and also be in multiple locations at once. This concept explains how two or more particles can be linked in such a way that they share the same condition or state regardless of distance, a phenomenon known as quantum entanglement, which Einstein referred to as “spooky action at a distance”.

Our conversation also covers specific use cases for quantum computers, and as we talk about specific use cases we pivot into obtaining patent protection for those use cases, how the United States Patent and Trademark Office is handling quantum computing related innovations, and whether patent examiners are issuing patent eligibility rejections for quantum software the same way that we have come to expect with classical software—spoiler alert, patent examiners are treating quantum software the same as classical software for eligibility purposes. 

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This week on IPWatchdog Unleashed I do not have a guest. Instead I want to take this opportunity to share my thoughts on the complex intersection between patent quality, patent examination and the Patent Trial and Appeal Board (PTAB). My interest in speaking today about these issues is triggered by the confirmation hearing last week for John Squires, who is President Trump’s nominee to be the next Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office.

During the hearing, Squires said his focus will be on making sure patents are, in his words, “born strong” because the PTAB has shown that 68% of issued patents are defective. This response from Squires has caused great concern for some who understood him to be saying that he believes the U.S. patent system is suffering from the issuance of low-quality patents. 

The reason this is so concerning is because the debate surrounding patent quality in the United States has historically focused on the notion that the Patent Office is letting too many bad patents slip through, a notion that has been promoted by a cast of characters and high-profile companies that have championed the very existence of the Patent Trial and Appeal Board, as well as the creation and use of various procedures that have made it ever more easy to strip patents away from patent owners. 

The problem with the low-patent quality narrative is that it just isn’t true. 

But does Squires believe the Patent Office is really issuing low quality patents and that is the problem? Does he believe the PTAB is doing a good job and is correct to find 70% of patents completely defective? Or does he believe the PTAB is aggressively overactive and should focus on error correction only where there is obviously a mistake and stop engaging in second guess of patent examiners? These are important questions, which didn’t get asked or answered as too many Senators used his hearing as an opportunity for scoring political points with the DOJ nominees who were having their hearing alongside Squires. 

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This week on IPWatchdog Unleashed I speak with Allison Gaul who serves as legal counsel for Boston Consulting Group. She is responsible for evaluating digital products with an eye towards intellectual property strategy, value creation, and legal risk. She is also a recovering, or at least former patent attorney. She does still advise BCG on patent issues, but she is not drafting and prosecuting patent applications at this point. We begin our conversation with me asking about what she believes are the biggest legal issues in the IP world today.

Gaul did identify several things that stay top of mind for her, with various issues relating to data front and center as the top issue. The second area identified by Gaul was open source, and how many of the AI companies promoting “open source” are really not truly open source because often the model, weights and/or training data are not made available, which makes it seem like these companies are racing to gain market share and ultimately “doing a little bit of a switcheroo.” The third and final thing that Gaul identifies as being constantly top of mind is the overall speed of AI development.  

We also discuss how the future will likely have a handful of very large companies that provide the backbone of future AI tools. These large AI giants will be very good at machine learning and very good at digesting massive amounts of information. Then we will likely see silos of expertise established. These silos or niches will be dominated by small companies that operate within a niche industry that they know really well. Indeed, we are already seeing small companies developing specific tools that are much better for a specialized purpose because they understand what that specific industry of subset needs.

We go on to discuss fair use, particularly discussing the legal troubles facing Meta, and ethics around AI development and use, as well as the importance of prompts and how it is frustrating—to say the least—that AI companies do not seem interested in helping users learn how to get better at prompting AI tools to get better results. 

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This week on IPWatchdog Unleashed we explore whether Artificial Intelligence (AI) technology has progressed to the point where it has already achieved consciousness. In a nutshell, the answer is our panel of technologists do not believe AI is very close to achieving consciousness, but that it is indeed possible for AI to reach the point of consciousness, and to even reach the point of self-reflection, which would pose an existential threat to humans. 

Our conversation this week is from a panel presentation titled “Artificial Intelligence Today: A Discussion of the Technical Landscape of AI.” I moderated this conversation, which was between Jason Alany Snyder, who is Chief AI Officer for Momentum Worldwide, Malek Ben Salem, an AI expert, technologist and consultant, Dustin Raney, who is Head of Industry Strategy for Acxiom, and Dina Blinksteyn, who is partner and co-chair of the AI Practice Group at Haynes Boone. 

We begin by asking whether AI has become sentient, and if not when we can expect AI will become sentient, which is a question I’ve asked Jason Alan Snyder each of the previous two years we have hosted an AI specific conference at IPWatchdog Studios. Two years ago, he predicted AI would become sentient within 15 years. Last year he predicted AI would become sentient within 14 years. Predictably perhaps, he agreed with his previous predictions and this year said, “13 years is probably a good guess,” said Snyder.

As the conversation unfolded, we spoke about whether hallucinations continue to be a problem for AI, whether the Turning test remains relevant with respect to defining AI, and fundamental aspects of what it means to be human.  And we wrap up at the point where Snyder and Ben Salem discuss how AI could become an existential threat to humanity.

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This week on IPWatchdog Unleashed we have a special conversation that was recorded at the end of our AI 2025 program in front of a live studio audience.  Joining me were Stephanie Curcio, Clint Mehall, and John Rogitz, who along with Wen Xie, make up the new IPWatchdog Advisory Committee. Each of these people have been long-time attendees at our events, they often speak on panels, they often written articles for us, and now they will help advise me with respect to programs and continue to provide content for IPWatchdog.com.

We begin our conversation by asking the panel if there was anything that they heard during our AI program that was surprising. Rogitz said it was a concerning change in tone from technologist Jason Allen Snyder who in years past was pumping the breaks on worry about AI, but this year talked about it using terms like "existential threat." Mehall also picked upon predictions from the technologists panel that AI could achieve consciousness in 13 to 15 years. Meanwhile Curcio focused in on quantum computing, which seems to be the future, but is difficult to grasp and may face an uncertain patent landscape. 

After spending time discussing patent prosecution strategy for AI, we next turn to data protection and trade secrets, which I personally think we didn’t spend enough time on this year and plan to spend more time on next year. To jumpstart this part of our conversation I set the table by saying that not all data is created equally. There is the data that is collected and imported into AI tools and processes, and what is particularly valuable is the insights from that data, which is a different form of data itself. So, I asked: What should do companies be doing? What are the best practices for identifying and protecting valuable data in the AI age?

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This week on IPWatchdog Unleashed we have a conversation with two shareholders from Wolf Greenfield. Ed Rassavage and John Strand were both speakers on our recently concluded AI 2025 program. As the program was concluding, and in front of a live studio audience, we sat down to discuss the current state of the industry from a client’s perspective. 

“It’s a lot of wait-and-see unfortunately,” Strand said. “The companies that have come to us for risk assessments mostly are mid-sized to larger companies that are very data heavy driven companies that are looking to use AI to enhance their data and extract value from it in some new way.” 

For Russavage, who is a patent attorney with 30 years of experience working in the software industry, the question for many clients relates to patent strategy, which can be extremely important given that so many AI companies are small companies, but the industry has some very large players. “We just tell folks file early file often and try to file something good. We use a lot of provisionals these days. Filing them within the matter of weeks or months not not years…So, it's it's a little bit more aggressive than it was for just typical software companies in the AI realm.”

Our conversation then pivoted to trade secrets, and the role of trade secrets for AI companies given that the data and insights gained from data can be extremely valuable. From here we proceed to discuss trademarks and the problems presented by an immature industry that hasn’t yet settled on what terms are generic and how that will impact trademark selection (and retention) and whether and to what extent AI platforms will face copyright infringement liability for using training data without permission and for the outputs from generative AI tools. 

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This week on IPWatchdog Unleashed I speak with my long-time friend Jim Carmichael, who is a former Administrative Patent Judge and the founder of Carmichael IP. Jim was on the Board of Appeals and Interferences at the United States Patent and Trademark Office (USPTO), which was the predecessor to the Patent Trial and Appeal Board (PTAB). Today Jim and his firm exclusively represent patent owners in post-grant proceedings, including inter partes review (IPR), post-grant review (PGR) and reexamination proceedings. In fact, year in and year out Carmichael IP ranks first or second in terms of win-rate on behalf of patent owners at the PTAB. 

Over the years we have had many conversations about the patent system, about patent litigation and of course about the PTAB, which is his particular area of interest and specialization. The purpose of this conversation was to attempt to capture these conversations and in light of where the industry is today to create a list of things that we think the Patent Office can and should do to create a better, fairer PTAB process.

In this extended 75-minute conversation Carmichael discusses ten ways the USPTO could and should fix the PTAB. 

1.     Fully reclaim institution authority. 

2.     Eliminate expert witnesses. 

3.     Eliminate supplemental preliminary briefing. 

4.     Presume nexus for secondary considerations. 

5.     When evaluating 325(d), the Office should credit 1449 and 892 forms.

6.     Terminate VLSI v. Opensky. 

7.     Eliminate reliance on common knowledge. 

8.     RPX and Unified should disclose list of members. 

9.     Require petitioners to justify reexam after IPR. 

10.   Settled expectations should mean explaining late challenges. 

In addition to the ten fixes the Office can itself undertake, Carmichael also mentions several things Congress can do, and why it is important for the Trump Administration to appoint judges to the Federal Circuit who will show respect to granted patents and patent owners. 

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This week on this edition of IPWatchdog Unleashed, we speak with Sonja London. Sonia has been general counsel at TactoTek and before that she spent 14 years working for Nokia, where she oversaw Nokia's consumer electronics licensing, global licensing program for connectivity and video codecs, and was responsible for standardization. Sonja has spent the last year as President of Licensing Executives Society International (LESI), and her time in that role is winding down as LESI’s annual meeting in Singapore approaches at the end of April. 

We start our conversation talking about London’s experiences over the last year—the good, the bad and the ugly. “There's no ugly and no bad,” London said with a chuckle. 

As London was discussing her approach to running LESI, she explained that the goal of the organization is to bring the community together for the purpose of “advancing the commercialization of intellectual assets… not property only, but assets, to bring creativity and innovation to the market, improving lives everywhere.” This provoked me to ask, so we were all on the same page, about the distinction she was drawing between assets and property, which led us into a conversation about the importance of trade secrets and know how. 

We move on to discuss culture, and lesson London learned as she has visited more than a dozen countries in her time as President of LESI over the last year. We discussed technology generally, and specifically within the automotive sector and how we are starting to see even the automotive sector new companies challenge the long-time incumbent players by rethinking the technology from the ground up. This led a conversation about agile development of technologies. And then we inevitably found our way to the most pressing business issue of the moment, the likely reordering of global trade and shifting supply chains, which very refreshingly we discussed in an apolitical, thoughtful way were we both expressed hope for the future, whatever that is going to look like. 

Our conversation weaved in and out of what is happening the moment, to lessons from the past, with both of us discussing lessons learned regarding agile development and businesses pivoting at a moment of existential thread during World War II. We also discussed the breakdown in supply chains during COVID, which caused great business disruption as the weak link in the supply chain inflicted delay and lost commerce. We discuss TRIPS and looking at the current global trade issues as an opportunity, even if it isn’t readily apparent what that opportunity is at the moment or who will have been able to seize it when we look back with the perspective of months, years or decades.

If global business, current affairs and intellectual property are of interest to you I strongly recommend you listen to my conversation with Sonja London. 

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This week on IPWatchdog Unleahsed we speak with James Edwards, who is the CEO of ELITE Strategic Services, a property rights advocate, lobbyist and is now also the author of the forthcoming book To Invent Is Divine: Creativity and Ownership, which addresses the disconnect between the attributes of creativity and ownership and human innovation, technological progress, and practical benefits from human creativity and ownership. 

During our conversation we explore the erosion of property rights in the United States, which has negatively impacted intellectual property rights, and why creativity and ownership are together the key to maximizing innovation, which is the fundamental premise of Jim's new book which will be released at the end of May but is currently available for pre-order. 

We also spend time speaking generally about how it is getting ever more difficult to bring people together to make positive change given that we live in a world today where so many people are unwilling to compromise. This is a change from years ago when getting "half a loaf of bread" was something politicians and stakeholders would see as a win, as was famously the case when President Reagan negotiated with Speaker of the House tip O'Neill. 

We also spend time talking about how many of the alleged problems with the patent system have nothing to do with patents or patent law, but are instead trade related problems. 

To order Jim's new book please visit:

https://www.amazon.com/Invent-Divine-Creativity-Ownership/dp/1956454853

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This week on IPWatchdog LIVE we present the remarks made during the Award Ceremony at IPWatchdog LIVE 2025 on March 3, 2025. Once again this year we presented two awards at IPWatchdog LIVE; the Paul Michel Award and the Pauline Newman Award. Both awards were created with the blessing of the Judges, who play an integral role in determining who to recognize each year. 

We were pleased to recognize Robert Taylor as the 2025 recipient of the Paul Michel Award. It is hard to imagine someone more deserving of the Paul Michel Award than Bob Taylor, who throughout his legal career has time and time again advocated on behalf of innovators, particularly those entrepreneurial innovators who take great risk and found high-tech startup companies, which are the lifeblood of the U.S. economy. Bob currently serves as General Counsel for the Alliance of U.S. Startups and Inventors for Jobs and is a member of the Advisory Board for the Bayh-Dole Coalition.

We were also pleased to recognize Steven Caltrider as the 2025 recipient of the Pauline Newman Award. Steve has been a leader in the intellectual property community for nearly 40 years and is widely recognized by his peers as one of the preeminent in-house IP leaders in the world. After more than 35 years with Eli Lilly and Company and rising to the position of Vice President and General Patent Counsel, Steve was not done. In 2022, Steve moved to the Dana Farber Cancer Institute, where he currently serves as Vice President and Chief Intellectual Property Officer.

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This week on IPWatchdog Unleashed I speak with my friend Jason Harrier, former Chief Patent Counsel at Capital One and current co-founder and General Counsel of artificial intelligence (AI) company IP Copilot. 

One of the things IP Copilot enables is the use of AI to streamline invention harvesting, running in the background as engineers and scientists engage in their daily activities communicating with each other. So, with this in mind I started our conversation by asking Harrier about invention harvesting, which I know from many conversations with in-house attorneys is one of the more difficult but critical important aspects of their job. We begin with a simple question: Why is invention harvesting so difficult and why are in-house attorneys always talking about in terms of what they tried in the past, what they are currently trying and what they hope to try in the future, sounding a little like Goldilocks looking for what is just right, but always out of reach.

And from there we dive into a conversation about how long scientists and engineers will typically stay with the company—his answer was 18 to 24 months—which led us to broader conversation about how many in the younger generation see work not as a job with normal hours, but a project that once done allows them to move on to whatever may be next. I called this a subcontractor mentality and wondered what this means for the future. 

We then pivot to the patent backlog—which is approximately 860,000 unexamined applications—and whether AI could help the U.S. Patent and Trademark Office (USPTO). According to Harrier, AI tools available today could help patent practitioners and patent examiners get on the same page and streamline patent prosecution. 

This led us into a conversation about patent prosecution strategy, overly broad claims, and how AI could contribute to streamlining patent examination through better prior art searches and with AI identifying the most relevant prior art is, which can often be quite different than the prior art applied by an examiner. If patent practitioner and patent examiner could work together with a closed universe of the most relevant prior art found by AI the ultimate output should be better, strong, more reliable, more difficult to challenge, and the entire process should be faster and more efficient. 

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This week on IPWatchdog Unleashed we present another keynote speaker—Lisa Jorgensen. Jorgensen’s speech was given during lunch on Monday, March 3 at IPWatchdog LIVE 2025.

Lisa Jorgensen is Deputy Director General for Patents and Technology at the World Intellectual Property Organization (WIPO). And even before assuming the position as Deputy Director General of WIPO in 2021, she was very well known to the U.S. intellectual property community. Before moving to Geneva to join WIPO she served for five years as the Executive Director of the American Intellectual Property Law Association (AIPLA), and prior to that she was Vice President of Intellectual Property and Licensing at STMicroelectronics. Jorgensen is a friend to everyone in the IP community, and we were honored to have her speak at IPWatchdog LIVE.

The keynote by Jorgensen focused primarily on two questions. First, what are the key trends driving global innovation today? Second, what do those key trends mean for the IP community and the innovators and creators? 

Jorgensen’s keynote speech was also full of eye-popping facts and figures, including:

• Global IP filings have nearly doubled over the past decade, growing from just under 11 million in 2013 to 20 million in 2023. 
• Patents, trademarks and designs filed by US innovators worldwide have increased by 6%, 35% and 45% respectively.
• Global intangibles are valued at over $80 trillion, which is more than the world's five largest economies combined. 
• In the US, 90% of the S&P market value is in intangible assets.
• The world's leading brands now worth over $13 trillion, with 45% of the value here in the United States.
• Intangible investment reached almost $7 trillion in 2023, with the US accounting for almost two-thirds of this total.

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This week on IPWatchdog Unleashed our conversation is with Judge John Holcomb of the United States Federal District Court for the Central District of California, which took place March 4, 2025, at IPWatchdog LIVE.

Judge Holcomb is one of us. He was a patent professional—a patent litigator—before he joined the federal judiciary. He was appointed by President Donald J. Trump during his first term. And he serves in the Central District of California, with his courthouse located in Santa Ana, California. Early in his career Judge Holcomb was an attorney for Irell & Manella, which is a familiar name to many of us, and then also a partner for many years with Knobbe Martens.

We began our conversation with the story about how John Holcomb the patent litigator went from private practice to becoming Judge John Holcomb of the U.S. Federal District Court for the Central District of California. As we pivot from the nomination and confirmation process, I asked Judge Holcomb: Does it surprise you what you are seeing as a district court judge, or were you prepared for the wide array of different issues?

 And then we pivot to discussing patent litigation, the makeup of the Central District of California, advice for litigators, experts, the new Rule 702 and Daubert hearings and rulings on expert testimony, we discussed the role of the jury and how Judge Holcomb divides time for trial, as well as the number of patents and claims best suited for a single trial, we also discussed Judge Holcomb’s practice relating to summary judgment motions. As our conversation wound down, we ended on the topic of his judicial philosophy, and to make the point Judge Holcomb told the story of three umpires. Holcomb explains that he believes there is an objectively correct answer and that he is doing his very best to get it right.

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This week on IPWatchdog Unleashed, I'm going to talk about an issue of enormous importance. The U.S. patent system feels to me an awful lot like the Titanic right now, and it feels like we're fast approaching an iceberg with disaster imminent.

The Trump Administration is making major changes to reduce the size of government to address the $37 trillion federal debt, including withdrawing employment offers to patent examiners and firing patent examiners still within their probationary period. Meanwhile, as the number of examiners is being cut, the backlog of unexamined patent applications is at an all-time high, with some sources saying there are now at least 1.2 million unexamined patent applications pending. And against this backdrop the Federal Circuit has developed an unhealthy obsession with the doctrine of prosecution laches, which creates a presumption that patents are unenforceable if it took longer than 6 years to obtain.

With fewer patent examiners and an historic backlog it will be difficult if not impossible for the Patent Office to issue most patents within 6 years. So, it feels a lot like the U.S. patent system is the Titanic headed for an iceberg, with disaster imminent. 

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This week on IPWatchdog Unleashed we take a dive into the world of university technology transfer with Laura Peter, who is the Executive Director of the University of North Carolina Charlotte Office of Research Commercialization and Partnerships and is a former Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the United States Patent and Trademark Office (USPTO) during President Trump’s first term. 

We begin our conversation discussing how Peter found herself at the Patent Office when Andrei Iancu was Director. Peter tells us that years ago when she was general counsel for a publicly traded company, she hired Iancu’s firm to represent the company. Fast forward 15 years and Iancu has become Director, and he reached out to Peter to see if she was interested in helping him at the Patent Office.  

We pivot to discuss how Peter found herself in her current role as the head of the technology transfer program at UNC Charlotte. We also spend time discussing core patent issues surrounding law, policy and the business of innovation. And our wide-ranging conversation goes on to discuss how other countries engage price control tactics on drugs, which means the United States is subsidizing drugs for the entire world, which is a trade problem and not a patent problem. We proceed to discuss startups, patent eligibility reform, the Patent Trial and Appeal Board and much more.

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 This week on IPWatchdog Unleashed we take a look at the importance of data transparency and standards for artificial intelligence (AI) and standard essential patents (SEPs). Our guest is Tim Pohlmann, who is the Managing Director for the Americas at LexisNexis Intellectual Property Solutions. And before he joined LexisNexis, Tim was the founder and CEO of IPLytics. Tim has worked at the intersection of data and standard essential patents for a long time, and the themes of data integrity, data transparency and how data can be used to influence and inform decision-making was the focus of our conversation. 

We being our conversation talking about entrepreneurship and leadership from the perspective of a founder and owner of a company that has been acquired, which is a welcome and happy occurrence, but not without challenges. 

As we pivoted the conversation to begin discussing data, standard essential patents and artificial intelligence, we transitioned by discussing first how the industry continues to evolve and never stays the same for very long, how there is so much innovation in the industry, and how there are economic and national security implications with China understandably wanting Chinese companies to dominate the technology future and the United States understandably wanting American companies to dominate. This can lead to tensions, and China, the U.S. and Europe all seem to be jockeying to set the technology standards of the future.

We proceed to talk about the United States and China competing on technology lead us into a conversation about AI and the role standards will play, which was front of mind probably because we recorded this conversation right as news of DeepSeek, China’s allegedly new super-advanced AI, was breaking. 

As we pivoted away from AI and into more traditional standard essential patents, particularly focusing on telecommunications (i.e., 5G and 6G), I acknowledge that while there will be need for AI standardization, and there will be a lot of unique questions arise in that context, we still don’t have a lot of answers in a number of critical areas for well-known and well-established technologies. This paved the way for us to discuss FRAND and to tackle the question about whether a FRAND rate really exists in the first place.

Our conversation goes on to discuss implementers understandably wanting to pay only to license patents that cover technologies that are actually included in the adopted standard, the potential that the Federal Circuit will rule that lump sum license payments are not relevant to determining a fair and reasonable licensing rate, what considerations go into converging on a rate that is FRAND, bulk discounting, and the role data plays in lifting the curtain so implementers who are themselves competitors with other implementers can determine whether they are getting a rate that will make them uncompetitive, and much more.  

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This week on IPWatchdog Unleashed we enter the world of innovation politics with a discussion about what to expect for the patent world during President Trump's second term, what to specifically expect from the Patent Office, what to expect in Congress relating to the patent reform bills that we can expect to be reintroduced, which are namely PREVAIL, which relates to reforming the Patent Trial and Appeal Board (PTAB), the Patent Eligibility Restoration Act (PERA), which relates to reforming the law on patent eligibility to make it easier to patent software—including artificial intelligence—and to make medical diagnostics patentable again, and RESTORE, which relates to overruling the Supreme Court’s 2006 decision in eBay v. MercExchange, which has made it virtually impossible to obtain injunctive relief even when patent owners win and prove ongoing infringement. 

The conversation that you will hear happened at the annual IPWatchdog PTAB Masters™ program, which was held at the end of January at IPWatchdog Studios. The panelists were Chief Judge Paul Michel, former Chief Judge of the United States Court of Appeals for the Federal Circuit, David Kappos, a partner with Cravath and a former Director of the Patent Office during President Obama's first term, and Chris Israel, who is a senior partner at American Continental Group and served in the George W. Bush White House as the first U.S. International Intellectual Property Enforcement Coordinator. Also joining the conversation is Scott McKeown, who is a shareholder at Wolf Greenfield and was Chair of the PTAB program. Scott, as most of you know, is also one of the leading experts on PTAB practice in the United States. 

We discuss the almost certain reintroduction of PREVAIL, PERA, and RESTORE, as well as the odds of getting patent reform during this Congress—which no one thinks was very likely unless President Trump himself steps up and makes it a priority. We also discuss the “helter-skelter” nature of the U.S. patent system, where the pieces don't fit together, don't integrate, leads to low predictability, and innovation-killing reality that simply does not incentivize investment in innovation. We also discuss the Administrative Patent Judges (APJs) of the PTAB being ordered back to the Office, and what that will mean for the number of petitions challenging patents that could possibly be instituted. And we discuss how antitrust enforcement would be unnecessary if we had a strong patent system that let young companies compete fairly based on innovation merit, and how Elon Musk is almost dead-on correct when he says that patents are for the weak—although Chris Israel suggested it would make more sense to say that “patents are for the young”. 

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On this episode of IP Watchdog Unleashed we speak with Scott McKeown, who is a shareholder at Wolf Greenfield. Scott leads the firm’s post grant patent practice, and he is the author of PatentsPostGrant.com, which provides inside views and news pertaining to the Nation’s busiest patent court, the Patent Trial and Appeal Board (PTAB) at the United States Patent and Trademark Office (USPTO).  As many in the industry no doubt know, Scott is recognized as one of the leading authorities on PTAB practice, including inter partes review (IPR) proceedings, post grant review (PGR) proceedings, as well as reexamination and reissue proceedings, which often follow on PTAB proceedings. 

Scott is not only a good friend, but he is also the Chair of our annual PTAB program, which took place this year from January 27 to January 29 at IPWatchdog Studios. This conversation with Scott took place before a live studio audience as a part of our PTAB Masters™ 2025 program.  

He's one of the most prolific representatives in the PTAB arena, dealing with IPR, PGR. He also handles reexaminations and the like. And he's also a very good friend of mine, and he's the chair of our PTAB program every year, which we're doing this, actually is live.

Our conversation was wide ranging but was dominated by discussion of patent reform efforts and whether the PTAB is working as intended. 

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This week on IPWatchdog Unleashed I had the opportunity to speak with my good friend Louis Foreman. Louis is the Chief Executive Officer of Enventys, which is a full-service product launch company that handles all aspects of product development, crowdfunding and ecommerce marketing. In addition to Enventys, Louis is a prolific inventor himself, he is also an Assistant Professor of Entrepreneurship at Wake Forest University, and as if that isn't already enough, Louis was the creator of the Emmy award-winning PBS TV show Everyday Edison that so many people in the community remember.  I've counted Louis as a friend for close to 20 years, so it was good to sit down for a conversation, even if that conversation took place remotely.

As our conversation unfolded it became clear pretty quickly that the focus would be on entrepreneurship, particularly the trials and tribulations of entrepreneurs looking to dive into the startup world with an innovative product. 

“There's three P's that I like to share with all entrepreneurs and all inventors,” Foreman said. “The first P is passion. If you're not passionate about what you're doing, find something else… The second P is patience. Inventors and entrepreneurs don't have a whole lot of it, but you need to because it's going to take longer than you expect. You're not going to become a billionaire overnight. It's going to take longer than what you expect to just be ready for the long haul. And the third P is persistence because life is going to throw all sorts of obstacles in front of you. There's going to be all these roadblocks or detours, and you're going to question whether or not you should even go forward… But if you really believe in what you're doing, you'll eventually succeed.”

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This week on IPWatchdog Unleashed we talk about pharmaceutical patents, pharmaceutical patent policy, and innovation. 

 As you may recall, back in 2022, the Inflation Reduction Act passed. And as part of that law, it gave the federal government the opportunity for the first time to “negotiate” drug prices for Medicare. The Biden Administration has viewed this as fantastic. It has allowed them to control drug prices and drug costs for Medicare. The problem is it's not really a negotiation in any fair sense of the word. What happens is the federal government identifies the drugs on which the U.S. government spends the most amount of money, and then they tell the drug companies that you will either take our offer or you will be fined, and the fines are ruinous—in the billions of dollars. So, the IRA negotiation nothing more than a price fixing, price controlling scheme.

 So why is this an issue for us to consider today if the IRA passed in 2022? Literally on the way out the door, last week Health and Human Services identified 15 more drugs that are now going to be forced into this price fixing “negotiation” scheme. 

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This week on IPWatchdog Unleashed I speak with my long-time friend, John White. Many in the patent community no doubt already know John quite well. Over 30 years ago he created the PLI Patent Bar Review Course that upwards of 40,000 patent practitioners have successfully used to study for the Patent Bar Exam. Today, John continues to teach the patent bar review, but he is also Special Counsel with Harness IP, where he represents clients all over the world and provides expert witness services.

I’ve known John since 1999 when I first started teaching the PLI Patent Bar Review Course, and we have been great friends ever since.  Our conversation this week was much like any number of conversations we have had over the years over dinner or drinks.

What prompted me to ask John to speak with us this week was an article he recently wrote, which we published on IPWatchdog. It was styled as an open letter to Elon Musk and Vivek Ramaswamy, the co-leaders of the Department of Government Efficiency. In that article John explains that “the patent system is currently foundered”, but that it can be fixed with “focus and ongoing commitment to see the fixes through to results.” So, that is where we start our conversation, like so many we have had over the last 26 years—what is wrong with the patent system and how should it be fixed. 

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This week on IPWatchdog Unleashed I speak with Heath Hoglund, who until several years ago was Vice President of IP and Standards for Dolby. About 3 years ago Heath left Dolby and became President of Via Licensing Alliance, which we discuss in some detail in our conversation. And truth be told he really didn’t leave Dolby. Via administers patent pools and has historically been heavily invested in the audio arena, and with Dolby being one of the premiere audio innovators of all time it is hardly a surprise that Dolby has been a long time participating and is one of the major patent owners who participates in the patent pools administered by Via. 

One of the first things Heath did as President of Via was to work on merging with MPEG-LA, which was a patent pool administrator that was primarily focused on video related technologies. So, today, Via Licensing is a major player in both audio and video technologies. 

During our conversation we discuss wide ranging issues, from the inevitability that there will be some implementers who do not want to take a license and will require patent owners to litigate, to the changing landscape, particularly in China where companies have evolved from merely needing a license to also being a licensor, to the European Union working toward regulating SEPs, and much more. 

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This week on IPWatchdog Unleashed we speak with Arthur Daemmrich, who is the Director of the Consortium of Science, Policy and Outcomes at Arizona State University. Arthur is a historian who was previously director of the Lemelson Center for the Study of Invention and Innovation at the Smithsonian Institution. We speak with Arthur this week about the role patents have played in innovation, dating back to the Industrial Revolution. We also discuss the invention of the video game by Ralph Baer, Samuel Colt and his mass produced six-shooter known as the gun that won the West, Henry Ford and the assembly line, how and why Elon Musk succeeded with Tesla, and much more.

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This week on IPWatchdog Unleashed we are going to dive into the online gaming and game development world in a conversation about gaming, intellectual property, licensing, game development, branding and much more. Our conversation this week focuses on Spaceport Technologies, which is a technology company that enables brand owners to monetize their IP and game platforms to offer content creators the ability to license the use of those brands within their game environment. To do this Spaceport uses innovative technology that reduces transaction costs and allows for the monetization of intellectual property assets. In fact, through the use of Spaceport protocols and apps the acquisition of rights and payment for those rights through numerous small dollar value transactions is not just faster and easier, the deals actually become possible. 

So, with that backdrop, let me introduce our guests. First is Dan Temkin, who is General Counsel and Head of Intellectual Property for Spaceport Technologies. He began his career working for Procter & Gamble, where he spent nearly a decade. It was while he was at P&G that he became first introduced to intellectual property, telling me that as he worked with the IP attorneys, he came to the conclusion that what they were working on was “a lot more interesting” than what he was working on. Reaching that conclusion led him to Boston University for law school and ultimately a career in intellectual property law. 

Our second guest this week is Jay Kolbe, a co-founder of Impact Partners, which is a strategic communications firm that focuses on family offices, venture capital and startup founders. Jay is a specialist in marketing technology-focused PR. He develops influential communications programs that increase the valuation of the companies he advises. And in addition to working with Spaceport, Jay also works with Josh Harlan and Harlan Capital, who we spoke with several weeks ago about how they invest in and monetize recurring IP revenue streams.

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This week my conversation is with Carlo Cotrone, who is a Chief IP Counsel and frequent contributor to IPWatchdog, both our online publication and at our in-person programs. Carlo writes and speaks frequently about setting up, growing and managing in-house IP departments, and that is the focus of our conversation. We discuss taking a holistic view that focuses on the IP strategy, the people, and the operational aspects of building and managing a team, which includes both in-house employees, outside law firms and service providers, all working together in coordination to deliver high impact for the company.  

During our conversation we discuss the need to guard against your in-house team falling into doing commoditized work, which gets in the way of your in-house team really partnering with the business and maximizing value for the company. 

We also discuss what Carlo refers to as “servant leadership”, and when he discusses the concept of servant leadership you can’t help but be reminded of the old saying about nothing being impossible to accomplish if you don’t care who gets the credit. Carlo explains that this service-oriented mindset has allowed him to confidently and carefully navigate whatever issues arise in a thoughtful and intentional way. And it is “intentionality” that Carlo focuses on repeatedly in his writings, presentations and during this conversation, because as he explains constantly fighting fires is not the right way to do business. Sure, things need to be done and issues will arise, but to successfully lead you need to focus on the fundamentals, strategy, people, operations, and periodically reevaluate all of the above to ensure the ideas and plans you are trying to execute continue to make sense and everyone is rowing in the same direction and toward the same goals, ensuring that that status quo is not being accepted and the team is delivering what the company and internal clients deserve and require. 

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This week my conversation is with Leo White, who is Chief IP Counsel and Associate General Counsel for The Duracell Company. Leo is a patent professional by training, first starting out as an engineer, then like so many in the patent field have done he became a patent agent, then went to law school, and thanks to hard work, good mentoring and being in the right place at the right time he became an IP attorney for The Duracell Company, ultimately rising to become the top IP attorney for this American Manufacturer with one of the more iconic brands in the world.  

During our conversation we begin by briefly talking about patent strategy, but then move quickly to brand protection, trademarks, trade dress and effectively working with customs agencies around the world. While Duracell does patent its various battery technologies, and while White is responsible for maintaining a worldwide patent portfolio for the company, the company’s trademark and trade dress portfolio are the IP tools of choice used most often when working to fight the never-ending battle against counterfeiters and copycats, and to also protect against gray market imports. 

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This week on IPWatchdog Unleashed we speak with Brian Hinman, who is one of the leading IP executives and investors in the world. Brian has held senior executive positions at leading technology companies, such as IBM, Philips and Verizon. And after spending more than 6 years as the Chief Innovation Officer for Aon, today he is Chief IP Officer for Cote Capital. 

During our conversation Hinman explains how Cote provides capital for scaling manufacturing and operations, with IP assets backing the investment. The way Hinman describes this IP asset-backed investment strategy sounds lot more owner-friendly and startup-friendly than a typical venture capital round of investment, which often requires owners to give up more than half the company in order to receive an investment.

During our conversation we also discuss pending legislation, particularly the RESTORE Act, which would effectively overrule eBay and create a presumption than a permanent injunction is the proper remedy, with Hinman explaining that the legislation places the burden on the infringer to demonstrate that a permanent injunction is not warranted, which according to Hinman is the way it should be.

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On the heels of the PREVAIL Act passing in the Senate Judiciary Committee, the very next day USPTO Director Kathi Vidal wrote on the Director’s Blog about how wonderful the PTAB has been, saying in part: “Since AIA proceedings began over a decade ago, almost 70% of challenged patents have been upheld at the PTAB.”

This claim by Director Vidal initially made me speechless. Simply stated, she is wrong. It is absolutely false for anyone to say or suggest that 70% of challenged patents have been upheld at the PTAB. This claim is not true. It is pure fiction.

PTAB stats admit that out of those patents that reach a final written decision 85% lose at least one claim and 70% lost all claims. That is the reality for patent owners. If the PTAB issues a final decision you are virtually certain to lose, and these statistics have largely remained unchanged, with only minimal fluctuation since the inception of the PTAB in 2012.

So, exactly who is fooling who? The way the rules are structured, and the way we have actually witnessed the PTAB operate, confirms that no patent is safe ever. And this is not meant as any indictment of PTAB judges—they are just doing the job as defined in the staute passed by Congress and the rules created by the PTO. This is, however, a scathing indictment of those laws and rules, which are in desperate need of reform. 

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This week I speak with Josh Harlan, who is the founder and managing partner of Harlan Capital Partners, which is a privately held investment firm based in Palm Beach, Florida, and which focuses on asset-based investments, including investments backed by media and intellectual property rights, and specifically the monetization of streams of revenue back by intangible assets. During our conversation we speak about various investable streams of revenue in the media, sports and IP universe, and then we also make a hard pivot to discuss artificial intelligence, and what those looking to invest in AI should be considering, the viability of fair use as a defense to the ongoing lawsuits brought by copyright owners against AI developers, and the likely future marketplace for the monetization of training data and AI outputs. Harlan sees the possibility of “some pretty big damages awards on a one-time basis” for content creators in their copyright lawsuits against large AI developers but doesn’t see these legal issues as an existential threat to the AI industry. 

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Walt Copan joins us for a conversation about the role of science, technology and innovation in U.S. competitiveness and for U.S. national security. 

As many of you no doubt know, Walt is a former Undersecretary of Commerce and served as the 16th Director of the National Institute of Standards and Technology, a position for which he was unanimously confirmed by the Senate during the Trump Administration. Today, Walt is the Vice President for Research and Technology Transfer at the Colorado School of Mines in Golden, Colorado. 

I invited Walt to join us for our annual life sciences program this year. My pitch was that we would have a one-on-one conversation that would not only make up the final segment of the program, but which would also be used for our IPWatchdog Unleashed podcast. He graciously accepted my invitation, and we sat down for this conversation on Wednesday, October 30. 

During our conversation we discuss the ongoing Bayh-Dole march-in rights drama being caused by his old agency—NIST—which has published a framework that would allow the government to strip patent rights away from exclusive licensees if the government believes the product covered by a patent is too expensive. We also discussed the diverging approach to commercialization between universities who can own and license patent rights and federal agencies, which operate under an entirely different statutory structure that makes it virtually impossible to get innovations made by federal government employees to the marketplace and commercialized for the good of society. We also discuss the upward trajectory of China vis-à-vis innovation and intellectual property, and the stagnation within the U.S. innovation ecosystem, which has been primarily led by uncertainty and dismantling of the U.S. intellectual property laws. 

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This week we have a special guest—the Honorable Pauline Newman, Circuit Judge on the Court of Appeals for the Federal Circuit. 

Judge Newman spoke at our annual Life Sciences program at IPWatchdog Studios on Tuesday, October 29. Her remarks were largely unscripted, although she did have some notes that she consulted from time to time during her nearly 45 minute presentation. Judge Newman told her story, and the story of the Federal Circuit, in her own words. So powerful were her comments that at least several in the audience were seen shedding a tear, and she received a hearty standing ovation. 

Judge Newman is being wrongfully persecuted by her colleagues on the Federal Circuit. She has taken and passed with flying colors the three different mental evaluations she has submitted to, all conducted by different, highly regarded evaluators. And in addition to the final mental evaluation she was given a cutting edge CT scan of her brain, which showed no signs of cognitive decline, and in fact rather remarkably showed a healthy brain that looked to be the scan of someone in their 20s. 

Faced with all the inaccurate statements in the complaint, which have never been correct despite their falsity, the Federal Circuit persists in excluding Judge Newman from hearing cases, which every day is becoming a more significant constitutional crisis. 

So, against this backdrop we are pleased to present the Honorable Pauline Newman. 

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In this episode of IPWatchdog Unleashed, we discuss patent prosecution with the director of intellectual property at one of the top five filing companies in the world. Sivon Kalminov is the Director the Intellectual Property Division at Canon USA, where he is responsible for managing the Division’s day-to-day patent prosecution work, which includes overseeing both the patent prosecution and administration departments. He also provides support on patent litigation matters, contract matters, and general U.S. patent law-related advice to various domestic and international Canon companies and subsidiaries. He is a current member of the California State Bar Intellectual Property Section, and a past Chair of the Section.

Our wide-ranging conversation took place in person on October 1, at IPWatchdog LIVE, shortly after Sivon spoke on a panel about strategies for getting to yes when working with patent examiners.During our conversation, we discuss the unique set-up of the Canon intellectual property department, which sees Sivon and his team representing Canon USA, but also representing various Canon entities from around the world as they enter the United States to obtain patents on previously filed applications. We also discuss the U.S. Patent and Trademark Office (USPTO) switching from EFS-Web to Patent Center, the unceremonious death of the After Final Consideration 2.0 program, examiners raising Section 112 and Section 101 issues for the first time in a Notice of Allowance, strategies for working with examiners, the importance of interviews to get on the same page with examiners, when and whether it is appropriate to appeal examiner rejections to the Board, and much more.

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This week we explore small and medium sized enterprises, often referred to simply as SMEs. And in particular, we take a look at how two different countries are working with their own small businesses to assist them with respect to innovation and intellectual property. To accomplish this, I turned to two friends – Mike McLean and Joe Doyle, who work to assist SMEs in Canada and Ireland respectively. Both Mike and Joe were in the United States at the end of September to speak at IPWatchdog LIVE 2024, on a panel titled Empowering SME Growth by Leveraging IP. During our conversation we learn about the ways both the Canadian and Irish governments are supporting SMEs, which is something that we in the United States should be doing to a much greater and coordinated degree. 

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This week on IPWatchdog Unleashed we have a special episode. At the end of September we held our annual all-topics conference, which we call IPWatchdog LIVE. This conference brings together some of the top thought leaders and newsmakers from the entire industry, with a variety of different backgrounds and people who focus on various different niche verticals within the IP community. So, while the conference was ongoing, Eileen McDermott, our editor in chief, asked some of the industry leaders in attendance what they thought was the most important issue facing the intellectual property industry.

“What is critically important and every leader in government needs to focus on is to make sure that the IP system is stable, it's predictable, and it's subject to fewer fluctuations,” said Andrei Iancu, former Under Secretary of Commerce for IP and Director of the USPTO during the Trump Administration. “We need to work towards a stronger, more consistent, more predictable intellectual property system, whether it's patents, trademarks, copyrights, or trade secrets.”

“The most pressing issue is the lack of appreciation of the link between strong and effective intellectual property rights and innovation outcomes,” said David Kappos, former Under Secretary of Commerce for IP and Director of the USPTO during the Obama administration. 

To hear more from these thought leaders, and others including Judge Pauline Newman, Alden Abbott, Matteo Sabattini, Judge Susan Braden, Patrick Kilbride, Hans Sauer, Brian O’Shaughnessy, and others, listen to this episode of IPWatchdog Unleashed.

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This week our conversation takes us on an international journey, more or less. Andras JOKUTI is an intellectual property lawyer with domestic and international experience in public IP policy and university technology transfer. He is the former Director-General for Legal Affairs of the Hungarian Intellectual Property Office, and he is a former Fulbright Scholar. Andras studied intellectual property and obtained his LL.M. in intellectual property law from The George Washington University. Thereafter, Andras worked with the Budapest University of Technology and Economics to strengthen its IP and technology transfer operations. And since January 2022, he has served as the Director of the Patent and Technology Law Division at World Intellectual Property Organization. Andras came to the United States last week to speak at IPWatchdog LIVE 2024, which was hosted at the Renaissance Capitol View hotel in Arlington, Virginia. 

During our wide-ranging conversation we discuss a number of issues, from standard essential patents, to artificial intelligence, and to trade secrets, which is what brought him to IPWatchdog, to discuss the new WIPO trade secret guide, published in July 2024. 

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This week we will change things up a bit. Until now our podcast has focused on conversations with newsmakers and interesting personalities. We won’t be giving that format up, but this week we will shift things to allow me to do a little ranting on a topic I’ve been thinking about more and more over the last several years; namely, do we still need, or even want, a Federal Circuit? 

I’ve been kicking this question around in my head for a while. There are a variety of reasons why the Federal Circuit seems to have outlived its usefulness, from panel dependency, to what at times appears to be utter disdain for certainty, predictability and even binding precedent, to the shocking, unfair and egregious treatment of Judge Newman. Why do we need a Federal Circuit? Why should we want this flawed institution to continue?

What we know is very little of what the Federal Circuit does any more relates to patents, with only 15% of what has occupied the Federal Circuit over the last six months relating to opinions in patent cases. Meanwhile, what decisions the Federal Circuit does issue are panel dependent and show not a care in the world about the Court’s original mandate, which was to create a unified national patent law and recognize that at least some patents have to be valid and enforced. And now over the last 2 years we have an inexplicable usurpation of authority with the virtual impeachment of Judge Newman. If these judges are so unfamiliar with basic due process and the opportunity to be fairly heard why should anyone believe they are themselves competent to be judges on any level? 

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Today we're going to tackle a question that has divided the patent innovation community for a generation. Depending on your perspective, patent trolls have been and continue to be a problem, or complaints about patent trolls have been greatly exaggerated.

As is often the case when emotions are running high and there is so much money at stake, the truth probably lies somewhere in the middle.

Unfortunately, the bad actors on both sides of patent litigation have so clouded the issues to the point where it's hard to look at patent owners and defendants as anything other than the caricatures they represent, which is the worst of the worst, really. So, let’s put some real facts on the table and meat on the bones and talk about what is really going on, both good, bad and ugly.

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This week the tables are turned. As many of you know Eli Mazour is the founder of the Clause 8 podcast, and the podcast is known by its tagline as “the Voice of IP.” Indeed, for years Eli has been just that… the voice of IP… interviewing numerous people in the industry, from Federal Circuit Judges to Chief IP Counsel and political leaders, I even had an opportunity to sit with Eli for a conversation when he first started Clause 8, which we discuss at the start of our conversation.

So, once I started my own podcast it was only natural to sit down with Eli for my own discussion with him, to pick his brain in an unscripted, open-end conversation. And the resulting conversation did not disappoint. We discussed a great many things about patents and innovation, the Federal Circuit and why clients want and need patents, and patent strategy. 

We begin our conversation with discussion of how Eli got into the science and engineering world and ultimately into the patent profession, and we also discuss his new home at Foley & Lardner, which has embraced Eli’s work on Clause 8, which will continue. 

In retrospect our conversation wound up being largely about the key to writing and obtaining high quality patents, which is also the key to innovating in the first place. You need to have a purpose and a goal. You need to be addressing an identifiable problem with a real, concrete, technical solution. And you need to focus on something that will actually matter to the client. And while patent strategy and ensuring protection actually protects what the client is selling matters most for those clients who will have several dozen or even several hundred patents, it really matters for everyone. 

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This week our conversation takes us in-house to discuss patent strategy and insights on how outside counsel can best work with in-house counsel to build a solid working relationship and actually deliver what the client wants and needs.

My conversation is with Gary Lobel, who is currently senior patent counsel for Reckitt where he is responsible for global legal and intellectual property matters for several different business units within the Reckitt family. In this role Gary plans and implements global intellectual property strategies in the area of biotechnology, pharmacologic and nutritional formulations. He works with in-house constituencies, evaluates opportunities for potential partnerships and acquisitions, and he manages outside counsel working on both patent procurement and litigation. Prior to joining Reckitt, Gary was Chief Patent Counsel for Nestlé, and he also worked early in his career as a patent attorney at Novartis. 

I always enjoy my conversations with Gary. He is extremely bright and thoughtful, I find that every time I speak with Gary I learn something, and our conversations often go down paths I didn’t expect but which are always interesting and informative.  Gary has a knack for seeing all sides to every issue or problem as if he is constantly playing a game of 3D chess and is at least several moves ahead. 

In our conversation this week we had a wide ranging conversation on patent strategy, including working with patent examiners—including what to do when you are assigned to a difficult patent examiner with a low allowance rate—the importance of interviews, tips for getting past 112 rejections, and how outside counsel can build solid, working relationships with in-house counsel, and much more. 

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Last week we hosted our first annual Women’s IP Forum, which was a huge success. This program came about for several reasons.

First, as many of you may know our “Masters Series” of events gets its name from the fact that those who are invited to speak on panels have true masters level knowledge and experience, often with speakers having at least a generation of industry experience, sometimes much more. And as much as I like the high level conversations we have at our Masters events, and while I don’t plan on making changes to the masters model, I’ve been bothered by not having some forum for rising stars to participate in.

And then earlier this year when I was planning our patent litigation masters program I was having a difficult time finding women speakers. After doing a little digging I learned that only 10% of patent litigators are women. It was then that I started then to formulate a plan to at least do something.

At about this same time I had a conversation with USPTO Director Kathi Vidal in which I shared my working thoughts about a Women’s IP Forum, which would include everyone from rising stars to those who are well established and at the top of the industry. I asked her what she thought of the idea. Director Vidal was immediately enthusiastic and supportive, which sealed the deal in my mind. And I decided we needed to move forward with all due speed and not to wait to add a new program as part of our 2025 calendar of events. After receiving more enthusiastic support from firms and many women in the industry we somewhat hastily put together the program we had last week, which despite the speed with which it all came together was the best attended program we have hosted to date at IPWatchdog Studios. The excitement and energy were palpable.

We were honored to have Director Vidal join us to kick off the program—a program that featured 100% women. And while I was present running the technology, I did not speak and I did not moderate a single panel. So, the honor of sharing the stage with Director Vidal fell to Renee Quinn, my wife and our Chief Operating Officer.

So, without any further ado, here is a portion of Renee’s conversation with Director Vidal from the IPWatchdog Women’s IP Forum.

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This week our conversation is with my friend John Rogitz, who is the managing patent attorney at Rogitz & Associates. John is a second generation patent attorney with more than 15 years worth of experience. He and his form work primarily in the software space, representing some of the largest video game companies in the world, which allows him to work not only on video games, but also on virtual and augmented reality technologies as well. And John also represents both well-established, large entities and start-up companies, with much of the rest of his work relating to Artificial Intelligence and Machine Learning. And in addition to his role managing the firm’s day-to-day operations, John also finds time to serve on the Executive Committee of the IP Section of the California Lawyers Association, teach as an adjunct professor at Trinity Law School, and occasionally write for us at IPWatchdog.com.

Being one of the more thoughtful patent practitioners I know, and someone who has auditioned numerous available AI tools for practitioners, I invited John to join my last intro to patent practice class to discuss prosecution strategy with my students this summer. While he was in town for that purpose we recorded this podcast. Not surprisingly, our conversation heavily focused on all-things software, both from the perspective of a technologist and the perspective of a patent professional searching, drafting and ultimately working with patent examiners to get allowances. So, we spent time discussing both the 2019 patent eligibility guidance, as well as several of the more recent guidelines from the Patent Office, including the Office’s AI guidance. 

We also spent a good deal of time discussing obviousness, KSR, and how at least sometimes, perhaps even often depending on the wording of the rejection from the examiner, you really only need to argue a lack of teaching, suggestion and motivation to persuade examiners that the claims you seek are nonobvious and allowable.

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This week our conversation is with Josh Hartman, a partner at Merchant and Gould in the firm’s Washington, DC office, and the head of the firm’s ITC litigation practice. The International Trade Commission, or the ITC as it is commonly called, is an independent, nonpartisan, quasi-judicial federal agency that fulfills a range of trade-related mandates. And one of the primary areas where the ITC has jurisdiction is with respect to unfair importation. Unfair importation practices, which are prohibited by Section 337, most often involve claims relating to intellectual property rights, such as allegations of patent infringement, various forms of trademark infringement or trade secret misappropriation. 

What makes the ITC such an important venue for intellectual property rights owners is the ability to rather quickly obtain injunctive relief in the form of an exclusion order, which prohibits the importation of infringing goods into the United States. 

And while there are other federal venues where injunctive relief can be obtained for trademark infringement, counterfeiting, and trade secret misappropriation, since the Supreme Court issued its landmark decision in eBay v. MercExchange in 2006, it is has been increasingly difficult, in fact absolutely impossible for many patent owners to obtain any form of injunctive relieve against infringers even after the infringer has been adjudicated as being liable as an infringer and the patent in question has withstood all challenges in all forums. 

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This week we journey inside the beltway into the world of politics, legislation and rulemaking, discussing innovation and patent politics with Chris Israel. Chris is currently a senior partner with ACG Advocacy, which is one of the premiere bipartisan government affairs and strategic consulting firms in Washington, DC. 

During our conversation we explore much of what is happening in DC relating to patents and innovation, and specifically discuss matters ranging from proposed guidelines from the National Institute of Standards and Technology relating to use of march-in rights to control drug prices, to the recently introduced RESTORE Act, which is little more than one-page would largely if not completely overrule the Supreme Court’s eBay decision and create a presumption that victorious patent owners who have proved infringement and withstood all invalidity challenges would be presumed to be entitled to injunctive relief. 

We also spend time discussing whether and to what extent patent and innovation policy is or has become political in the traditional sense. Often you will hear people discuss how this is not political in the Republican vs. Democrat way, with members of Congress on both sides reaching across the aisle to agree, both in favor of more protections for creators and innovators, and others who reach across the aisle sharing positions more favorable to implementers. But are times changing and is the patent and innovation space becoming more political in the traditional R vs. D sense? There may be some reasons to believe that at least certain issues are becoming political, with progressive and populist policies and champions tending to favor regulation and legislation that is often portrayed as likely to lower costs of products and services, particularly those that relate to drugs, which has become a hotly debated topic within the patent and innovation community. 

Chris and I also spend time talking about the reality that everyone on Capitol Hill is in favor of innovation—and much more innovation—and everyone seems to agree that the U.S. is suffering from a so-called China problem as it relates to the theft of intellectual property rights and innovation generally. And while everyone wants more innovation, talks about how important innovation is, and how it is essential to do something about the growing threat of theft from China, there is little agreement about next steps, or even basic solutions that would move past the talking points and into the realm of action. 

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Our conversation this week takes us into the world of product licensing, and what we discuss will no doubt come as a bit of a shock to many patent practitioners and innovators in the high-tech and life sciences industries. This week I speak with Stephen Key, who is an inventor, entrepreneur, author and the founder of InventRight, which is a coaching company that helps independent inventors and startups learn how to license their inventions and ideas to industry. Unlike many who operate in the invention space and cater to independent inventors, Stephen has been and continues to be a successful inventor in his own right, having licensed many of his own inventions, and even having been forced to chase an infringer into a patent litigation case once upon a time.

I always enjoy talking with Stephen because for so much of the generation the patent and innovation industry has fallen apart thanks bad policy decisions and increasingly bad decisions from the Supreme Court and Federal Circuit. But as Stephen will tell us, there is a part of the industry that continues to work very well, and precisely as designed.  

If you are an inventor of a consumer product there are reputable companies looking for inventions and ideas to bring to market, and their business model is built on taking products to market over and over again, and they are in constant need of new products and improvements. They also realize litigation is wasteful when you are dealing with products that often have a 1-, 2- or 3-year shelf life, so they are willing to do deals that allow them to quickly get products onto shelves and into the stream of commerce, and inventors get paid. 

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