How not to drown in the dynamic IP ocean
The practice of intellectual property law was much simpler 25 years ago. Practice before the U.S. Patent and Trademark Office (PTO) was straightforward; the rules and procedures for patent and trademark prosecution seldom changed. The electronic revolution had not yet arrived to try and completely undermine copyright law. A two-person trial team could easily and effectively handle IP litigation because, back then, the scope of the paper discovery and complexity of a trial were readily manageable. Foreign IP disputes were almost unheard of.
But then, scientific developments, the Internet and subsequently the public electronic world, and, quite frankly, the drive for non-practicing entities (NPEs) and their lawyers to make money through patent litigation changed all that. NPEs are companies that make money by buying up patents and licensing them to others; they do not make or sell products.
The debate continues as to whether IP and unbridled IP litigation are means to encourage innovation by rewarding the innovators, or means for blocking innovation by preventing or discouraging others from using the technology or ideas to improve them further. Litigation costs and the ease of instituting frivolous IP litigation are seen as problems. Many disagree as to how the IP laws of one country can be used to punish activities occurring in another country. Critics question what may and may not be patented regarding biotechnology and business methods. The Internet has blurred the lines as to what information is free for all in the public domain or protectable by copyright law for the exclusive use by the copyright owner. The electronic workplace has made it easier for wrongdoers to take a company’s trade secrets and other valuable information via flash drives and the like. There are countless other tensions.
It seems everyone wants to get involved and voice their opinion about how to fix the believed problems facing IP and enforcement of IP rights. Congress enacts legislation and proposes more in an attempt to reign in excesses. The. Justice Department investigates whether actions by NPEs and others are disrupting competition illegally in high-tech and other markets. The Supreme Court and the Federal Circuit seem to be changing IP law on a monthly basis. The International Trade Commission (ITC) is receptive to expanded theories to prevent unfair foreigner trade practices due to IP misconduct. ThePTO’s rules and procedures are revised constantly. It goes on and on.
So how can IP inside counsel keep abreast of the ever-changing, dynamic IP landscape and not drown in the vast IP ocean? In my opinion, it makes sense to rely upon a combination of one’s own efforts and education from outside sources. Following a respected blog is a good starting point. For patent law, the Patently-O blog, by Professor Dennis Crouch, University of Missouri School of Law, is superb. For trade secrets, consider The Trade Secrets Vault, by Jon Cavicchi, New Hampshire University. For those interested in the interplay between patent and FDA law, the Orange Book Blog, by Aaron Barkoff, is up-to-date and beyond informative. For a minimal subscription fee, the Docket Report provides excellent reporting and summaries of the most recent court decisions on IP cases. Also for a fee, IP Law 360 provides breaking news coverage on all aspects of IP law. Finally, for biotech-related IP, Biotech IP Blog by Professor Chris Holman, University of Missouri-Kansas City School of Law, is a great resource.
It also would be helpful to partner with an outside IP law firm that has capabilities in all areas of IP, such as obtaining and litigating patents, trademarks, copyrights; knowing the ins and outs of trade secret issues; handling IP due diligence and opinions for business transactions; and having IP litigation experience in all those areas. These IP firms have the technical knowledge and resources, as well as the motivation, to monitor and understand the developments and trends in IP law that will most impact their clients.
Most outside IP law firms should be happy to provide the following things for free to inside counsel:
- Weekly updates on key breaking IP issues;
- Immediate summaries of major IP case decisions;
- Quarterly or semi-annual CLE presentations on IP for all inside counsel;
- Monthly summaries of key developments in the Patent Office; and
- Monthly summaries of what is happening on the legislative front with IP.
Inside counsel might consider hosting periodically “IP Law Days,” where they invite a law firm or multiple law firms to educate inside counsel on key IP developments.
So when you feel you can no longer stay afloat, all you need to do is look for the life jacket, because trust me, it’s out there.