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Thoughts on Rader, Kappos and other things from the IPBC in Boston ...

When there’s time over the next couple of days I’ll try to put together a few blogs based on stuff seen and heard around this year’s IPBC Global, now underway in Boston. Here’s the first of them:

Boston: We held our opening reception on the lawn of the John Joseph Moakley US Courthouse, which overlooks Boston harbour. It was warm in the early evening sun, the sky was cloudless, the water was a shimmering blue. When the weather is like it was yesterday Boston is truly a beautiful place. Along with Chicago it is this European’s favourite US city.

Rader: One of the major items of discussion as I did the rounds during the opening reception was the New York Times OpEd Randall Rader, chief judge of the CAFC, penned with Colleen Chien of the  Santa Clara University Law School and David Hrick of Mercer University. There was much surprise, and some anger I have to say, that Rader had collaborated on the piece in conjunction with Chien, who has written extensively about the alleged harms that trolls are causing to innovative US companies. Chien is felt to have a specific agenda, I was told by more than one person I spoke to, and for Rader to lend weight to it by co-authoring with her was a mistake. What’s more, the piece itself is not exactly watertight. On PatentlyO Dennis Crouch has identified some of the issues; while  one thing that caused me to double take was the conflation of trolls with non-practising entities and patent assertion entities – that is just plain misleading (after all, Chien herself coined the term patent assertion entities and she did it specifically because she did not think the term troll was a suitable one). However, in principle I do not have a problem with what Rader did – it’s good to see judges putting their money where their mouths are. They need to be heard as they are on the coalface and in the US’s common law system have a major role to play in shaping on-going developments. What’s more, the article also contained what I consider to be a very helpful starting point from which to define what a troll (as opposed to, say, an NPE or PAE) really is: they are entities which “make money by threatening companies with expensive lawsuits and then using that cudgel, rather than the merits of a case, to extract a financial settlement”. That works for me, as it clearly excludes any number of business models currently being deployed by non-operating companies which seek to gain licensees for patents that have been either created or acquired following extensive evaluation, and which are not interested in extracting nuisance money from alleged infringers worried about the costs of fighting a case. Some refinement may be needed, but that summary is a good place from which to begin framing the elusive definition of the term “troll”.

IP value: Every Sunday before the start of the IPBC we get together a group of CIPOs and other senior corporate IP managers with a diverse range of intermediaries, aggregators and service providers to play a set of innovation games moderated by Luke Hohmann of the Innovation Games Company. These are always highly dynamic affairs in which individuals at the top of the market discuss and defend their views on some of the big topics of the day. This year the focus was on IP value creation. What was fascinating was to see how different people approached the subject and the differing views they had on what IP value actually means, how it is created and who should be in charge of delivering it. For some it was all about IP’s ability to enhance a company’s profit-making potential; for others it was about using IP to do deals; some took a very wide view of what IP encompassed; others essentially equated it with patents. Basically, we had 28 people in the room and 28 different perspectives. For us observers it was fascinating, but it showed the challenge facing those tasked with building IP value which, it seems, is very much in the eye of the beholder.

Kappos: Back in December I reported on concerns that had been expressed to me by some people that David Kappos was effectively pushed out of the USPTO because of his stance on software patents. This was subsequently and vehemently denied at a senior level in the office. However, I do wonder whether there was something in what I originally heard. I look at the unbelievably one-sided report on NPEs that came out of the White House last week, I listen to what the president has said about “trolls” and I ask myself whether a USPTO led by David Kappos could possibly have begun to defend the views expressed or, God forbid, to act upon them. I have been told that Kappos had to give up a huge amount financially (up to $10 million) when he left IBM to take over the USPTO; I just wonder whether sub-consciously, at least, he had got to the stage where he realised a certain way of thinking about patents (let’s call it the Google perspective, for want of a better term) had established itself inside senior parts of the Obama administration and that it was a perspective that Kappos himself did not share. Given that, why stick around either to defend the indefensible or to be increasingly marginalised when there was good money to be earned by going into private practice?

Lobster: Is it possible to eat too much? I am determined to find out before I head home on Thursday.

Tweets: Stay tuned for IPBC news via twitter - #IPBC13


Joff Wild
IAM Magazine
10 June 2013

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Licensing, IP politics, IP litigation, Patents, IP business

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