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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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