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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This week our conversation is with Patrick Kilbride, who is a public policy expert with significant expertise at the intersection between market economics, innovation and intellectual property. A former Deputy Assistant U.S. Trade Representative during the George W. Bush Administration, Kilbride has spent the last 15 years working on innovation policy at the United States Chamber of Commerce, most recently as Senior Vice President of the Global Innovation Policy Center. Several months ago, Kilbride decided to leave the Chamber to chart his own course, founding Kilbride Public Affairs, where he will continue to engage global policymakers in support of market economics, innovation and the rule of law. 

At the beginning of our conversation Kilbride explains that “one of the most remarkable things about the American economy is that what we have done historically does seem to be so unique.” He then pointed to five distinguishing features, which we spend the rest of our conversation discussing. According to Kilbride, what makes the U.S. unique is that the American economic approach enables risk taking and failure, fosters competition and ensures goods and services can cross state lines, provides property rights, is based on the rule of law, and establishes markets.

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Our conversation today is with Corey Salsberg, who is the Vice President and Global Head of IP Affairs for Novartis, which is one of the world’s leading and more innovative biopharmaceutical companies.

During a wide ranging that goes for just over an hour, we discuss whether patents are to blame for high drug prices, and if not what is the real driver of drug prices in America. Ultimately, the conclusion is there are several things to blame, but placing blame on patents and exclusive rights is misguided and naive. 

We also discuss recent attempts by the government to place price controls on the pharmaceuticals most widely used by seniors on Medicare, and why the so-called “negotiation” that the government claims will take place is nothing more than what lawyers call gun at the head duress, and nothing at all like a fair negotiation. 

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This week we journey into the world of Artificial Intelligence. The term Artificial Intelligence itself has largely become the generic term used to describe a variety of related but different concepts, often wrapping together AI, Machine Learning and Generative AI as if they all relate to the same thing, or as if there is a single technology that is, in fact, AI. These related but different technologies differ in scope, function, techniques used, and they also differ in terms of trustworthiness and reliability. But generally speaking, AI focuses on techniques and applications that create the appearance of human cognition in or from a machine. Machine learning focuses on the development of algorithms and statistical models that enable computers to perform tasks without being explicitly programmed for those tasks. And generative AI focuses on creating new data, such as images, music, and writings, that mimic the patterns presented in the training data. 

Much of what will discuss today will tackle the technical issues that face the industry and innovators in this space. Specifically, we will discuss the various practical manifestations of AI, ML, and Generative AI as they currently exist in 2024, and are likely to exist in the near future. We will attempt to separate fact from fiction with respect to what these technologies can currently do, what the technology does well versus what the technology struggles with, and what the industry can expect moving forward. 

We will also discuss the thorny problem of hallucinations, the impact of AI learning from learning from its own creations, the steps that are being taken to ensure reliability and accuracy, and how to verify that AI is safe, secure and trustworthy.

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For this episode of IPWatchdog Unleashed, Gene Quinn speaks with Brad Watts, who is Vice President for Patents and Innovation Policy at the Global Innovation Policy Center at the U.S. Chamber of Commerce. Recently Brad has written a number of articles posted to the GIPC blog which focus on Biden Administration proposals regarding march-in rights, federal funding for innovation, and biopharma patent and innovation policy. This conversation addresses those issues generally, but also specifically discuss the recently release FDA and USPTO report relating to inaccurate, misleading data that is often misused as a part of IP policy debates on Capitol Hill, the need to properly incentivize innovation, U.S. innovation leadership, and how a strong patent system encourages risk-taking and greater innovation. 

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Ordinarily patent practitioners do not need to really think about prosecution laches, but laches has become a rather hot topic as the United States Patent and Trademark Office and courts have initiated what can only be characterized as an assault on an applicant’s statutory right to seek and file additional claims if those claims are supported by the initial disclosure. 

Prosecution laches is only supposed to apply in egregious cases of unreasonable and unexplained delay in prosecution. And a finding of prosecution laches is supposed to require that the accused infringer suffered prejudice as a result of egregious applicant delay by proving investment in, work on, or use of the claimed technology during the period of delay. Last year the Federal Circuit ignored the requirement of prejudice when it found that PMC engaged in egregious and unreasonable delay, which result in a finding of laches in Apple's favor despite the fact that Apple did not even start any infringing activity until years after the delay ended.

Join Gene Quinn, President & Founder of IPWatchdog, Dean Geibel, Chief Patent Counsel for Samtec, and Eric Foster, Intellectual Property Counsel for First Solar. 

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This week we venture into the world of patent monetization from the viewpoint of a patent owner and non-practicing entity. Our conversation is with Brad Close, a one-time patent prosecution attorney, one-time patent broker, and current patent owner engaged in patent monetization efforts, licensing and, of course, litigation. 

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