Clause 8

We hope you've enjoyed the episodes we've released so far in this season. We'll be taking a short break and will release the rest of the season very soon.

For more information, visit voiceofip.com.  And, if you would like to learn more about my firm, visit harrityllp.com.

If you’ve ever wondered how and why Judge Alan D Albright - of the Western District Texas -  became America’s go-to judge for patent cases, you don’t want to miss this episode. 

Before Judge Albright was confirmed in 2018, less than 10 patent cases had been filed in Waco district in its entire history. In 2020 alone, he took on almost 800 new patent cases, accounting for 20% of all new patent cases filed in the US last year. 

“Having practised all those years, I get that 99% of the time, while it may appear that the dispute is trivial, it's really important. It's very binary, and whatever I rule is going to drop, not maybe dramatically, but it's going to have an impact.”

This episode covers why Judge Albright loves handling patent cases, his plans for handling a growing docket, and his views on how a judge should handle a patent case and what makes an effective patent litigation counsel. 

“The best math teacher you're ever going to have is someone who really understands math, so that when they're explaining it to you, they make it simple enough for you to understand. It's the same with patent cases. Which is, find unicorns who have such a high level of technical understanding that they can then teach it to a jury through the witnesses.”

Judge Albright is as transparent in this episode as he is in the courtroom. So if you’re wondering how to make your case more efficient, how you can clerk for him, or why it’s easier to predict where to be struck by lightning than how to become a district court judge, don’t miss him on this week’s Clause 8. 

On today’s podcast:

• Judge Albright’s love for patent cases & why it’s not really work for him
• Plan to handle growing docket of patent cases 
• Getting into patent law as the youngest magistrate judge in history
• Why many district court judges aren’t interested in handling patent cases and how it impacts their resolution 
• Example set by Judge John Ward and Eastern District of Texas
• Why patent owners deserve a jury trial
• Picking effective patent litigation counsel
• Discovery disputes 
• Approach to attorneys filing transfer motions 
• Advice to trial attorneys for preparing and being effective 
• Navigating Federal Circuit decisions and focusing on being a good trial judge 
• Following press coverage & commitment to transparency
• Clerking for Judge Alan Albright
• Why you shouldn’t - or possibly should - wear python boots to the courthouse

Links:

• US District Judge Alan Albright – US District Court

How many Supreme Court Justices can you count as friends? Professor Stephen Yelderman, one of America’s leading IP scholars, was recruited to join the Notre Dame Law School faculty by future Supreme Court Justice Amy Coney Barrett, and clerked for Justice Neil Gorsuch before and after he joined the Supreme Court. 

Prof. Yelderman’s experience of having a personal connection to not one, but two Supreme Court justices, as well as having clerked at the Supreme Court, have provided him with a unique perspective into how the Supreme Court approaches patent and other IP issues. 

“One of the cool things about the court is there's usually nine justices and at least nine clerks, all thinking about the exact same legal issues at the exact same moment in time. And it really leads to a level of engagement, and conversation and debate. That really is a lot of fun.”

In today’s incredibly candid episode, Prof. Yelderman shares his journey into patent law, why he chose to become a patent agent, meeting Justice Amy Coney Barrett, clerking at the Supreme Court, and the creative ways companies try to influence the Supreme Court.   

Prof. Yelderman insights are not to be missed by anyone who is interested in having a better understanding of how the Supreme Court approaches IP issues, how the patent system truly works, and how to succeed in the legal field. 

“A piece of advice I have is when an opportunity comes, say yes to it because you oftentimes don't have good visibility to all the doors that will open down the road.”

On today’s podcast:

• From engineering at Stanford to patent law to clerking at the Supreme Court
• Misguided thinking about “patent quality”
• Different approaches to anticipation and obviousness during USPTO examination, PTAB proceedings, and district court litigation
• Meeting and working with ACB before she joined the Supreme Court
• The one patent case ACB decided before joining the Supreme Court that cited one of Prof. Yelderman’s articles
• How and why the Supreme Court approaches IP cases differently from other cases
• Gorsuch’s correct approach to patent cases & the one case he got wrong
• Why Gorsuch’s concerns regarding the PTAB are likely to be the future consensus 
• Efforts to influence Supreme Court & impact of atmospherics on the justices’ decisions regarding patent cases

Links:

• Stephen Yelderman

At the end of last year, IPWatchdog asked leaders in the field about their wildest dreams for America’s IP system. The most common answer was for former director of the USPTO Andrei Iancu to continue on as director.  Former Deputy USPTO Director Russ Slifer noted that Andrei will be a hard act to follow. 

Andrei immigrated from communist Romania when he was 13 years old, and still, to this day, believes the US is the best place to be for freedom and opportunity. 

“I'm a huge fan of innovation and creation, creativity, and the intellectual property that supports all of that. I do believe in one's ability to take control of their own destiny and succeed, and I think the United States offers that unlike any other country.”

From the first time learning about patents, to pursuing a career in patent litigation where he represented clients on both sides and in all sorts of industries for over 20 years, to creating balance at the USPTO, to highlighting how successfully the IP system has enabled the invention, development, production and rollout of multiple COVID-19 vaccines, not just in the US, but worldwide, Andrei’s passion for patents is palpable:

“This is really the best area of law to be in, one of the best professions to be in, in general, how lucky we are. We work on behalf of the most creative people in the world, literally people who are changing the world and improving the human condition.”

If you’re keen to follow in Andrei Iancu’s footsteps, to be a future director of the USPTO, or to find out how to communicate with the new director, don’t miss Andrei on this week’s Clause 8. 

On today’s podcast:

• From communist Romania to USPTO
• How the IP system has dealt with the pandemic
• The two jobs of the PTO director
• The best way to communicate with the USPTO
• What makes employees successful at the USPTO
• Andrei’s advice to younger patent attorneys

Links:

• https://www.irell.com/lawyers-andrei-iancu
• LinkedIn - Andrei Iancu
• Book- The Boys In The Boat

Judge Joe Lentivech is a former Administrative Patent Judge. On this episode, he talks about how he became an Administrative Patent Judge, how the Patent Trial and Appeal Board (PTAB) operates, how to win ex parte appeals, overcoming Section 101 rejections, oral hearings at the PTAB, and much more!

Brad Watts is the Majority Chief Counsel and Staff Director for the Senate Subcommittee on Intellectual Property. Under the leadership of Sen. Thom Tillis, Brad led the herculean effort to fix the Section 101, patent eligibility mess.

In this episode, Eli and Brad talk what really happened during this last attempt at reform, why it wasn’t successful, where to go from here, and much more.

Welcome to Clause 8 – the Voice of IP. Clause 8 is part of IPWatchdog and hosted by Eli Mazour. If you enjoy listening, please subscribe on your favorite podcasting app, share it with others, and leave a five-star rating.

This episode features an interview with Professor Adam Mossoff from George Mason University’s Scalia Law School. He is the leading academic expert when it comes to intellectual property policy issues. Most significantly, he is largely responsible for providing the intellectual foundation that has helped shift the anti-patent narrative in Washington, DC. There’s a good chance that you’ve come across his many op-eds on IP issues in publications such as the Wall Street Journal or have seen his engaging testimony at Congressional Hearings.

On this episode, Eli and Professor Mossoff discuss many subjects, including:
• how Richard Epstein influenced Professor Mossoff’s scholarship,
• how the ideals of classical liberalism relate to intellectual property rights,
• the debate among conservatives and libertarians regarding IP issues
• what’s wrong about framing IP rights as being all about providing incentives,
• the Supreme Court’s approach to patent cases,
• why Congress and the executive branch – not the Supreme Court - are the better path for improving America’s patent system
• “Why Do Law Professors Do What They Do?”
• how law school professors influence the patent policy debate,
• how trade organizations try to shape the patent policy debate by using law professors and other prominent attorneys,
• importance of law school professors making it clear when they’re acting as advocates v. as academics,
• navigating junk science studies/statistical claims about the patent system,
• importance of engaging in a positive research agenda about the patent system instead of just reacting to bad scholarship,
• empirical research overwhelmingly contradicting the patent holdup theory over the last 10 years,
• educating Congressman Darrell Issa and the importance of having evidence and data on your side,
• contradiction of China strengthening its own patent system while continuing to steal IP from other countries and having no rule of law otherwise,
• the unprecedented response by the pharmaceutical industry to the COVID‑19 pandemic thanks to the foundation previously created by America’s patent system, and
• how current changes to the patent system can undermine a similar response to the future.

This episode features an interview with Bruce MacEwen. He is the founder and president of Adam Smith, Esq. and has written thousands of articles on the economics of law firms. He is recognized as the world’s leading expert in this subject and provides advice to a select number of law firms about how to succeed in the changing legal landscape.

During this episode, Bruce and Eli discuss:
• Why Bruce thought there was something off about law firms by Thanksgiving of his first year as an associate
• How companies select & manage outside counsel
• Tension of building in-house law departments v. relying on outside counsel
• Why law firms refuse to do recession scenario planning
• Surprising nimbleness of law firms
• Law firms being much more thoughtful and humane in dealing with the Covid-19 pandemic than they were during the “Great Financial Reset of 2008”
• Why successful law firm partners can be dynamite for law firms
• Rethinking real estate needs of law firms
• “Best-in-breed” law firms v. full-service law firms
• Boutiques and benefits of a lawyer’s practice being at the core of what a firm does
• Using Net Promoter Score (NPS) to evaluate law firms
• Law firms deciding whether to invest in a practice area
• Vision and hunger being the key to starting a successful boutique law
• Difference between lawyers who succeed v. fail

This episode features an interview with Sarah Tsou, who is an investment manager for patent litigation at the world’s leading litigation funder, Bentham IMF (now part of Omni Bridgeway Limited).

The playbook is simple for deep-pocketed defendants facing lawsuits from patent owners with limited resources. Even if a patent owner has a very strong case, the defendant can just drag the case out long enough until the patent owner and his lawyers run out of resources to continue. At best, the patent owners are forced to settle lawsuits for a fraction of what they think they are owed.

Patent litigation funders have changed this calculus by providing patent owners with enough resources. However, as you will hear in this episode, only 1% of cases have the rare mix of merits and economics to receive funding from top litigation funders.

This episode is especially relevant because of the pressure many in-house patent litigation attorneys are facing to settle or give up because of shrinking budgets due to the Covid-19 pandemic. Eli and Sarah discuss how patent litigation funding can serve as an attractive alternative for companies that are in this position.

This episode of Clause 8 features an interview with Brian Pomper of the Innovation Alliance.

Thomas Edison, the Wright Brothers, and Charles Goodyear are some of America’s best-known innovators. Instead of just making and selling the final products, they obtained patents and licensed their innovations to manufacturers. American companies like IBM, Qualcomm, and Dolby have followed this great American tradition of focusing on innovation.

However, the patent troll narrative has undermined the idea that innovators should be incentivized and rewarded for their efforts. A string of Supreme Court decisions and the passage of the American Invents Act were part of an effort to deal with the so-called “patent troll” problem.

Around the time that the AIA was being debated in Congress, a diverse group of technology companies that focus on research and development formed the Innovation Alliance to educate DC policymakers.

And, Brian – a registered patent attorney who worked for several years on Capitol Hill - became the executive director of Innovation Alliance shortly after it was started.

During this episode, Brian discusses:
• working in Congress and how he became the head of The Innovation Alliance;
• the #1 way to improve the patent system;
• what unites the Innovation Alliance;
• how the Innovation Alliance tried to improve the AIA;
• the Obama administration’s continued efforts to restrict patent rights;
• how DC became more patent friendly;
• the Senate IP subcommittee and why there’s still hope for legislative action to fix patent eligibility;
• importance of having grassroots support for legislative efforts;
• the impact that the Covid-19 pandemic is having on the patent policy debate and the Open Covid Pledge; and
• much more!