July 04, 2013
The biennial Harvard Law School Conference on Intellectual Property Law attracted scores of IP lawyers, business people, academicians, and judges to the school April 12 to discuss recent developments in IP law.
According to William W. Fisher, the WilmerHale Professor of Intellectual Property Law at HLS and co-chair of the event since its inception 10 years ago, the purpose of the conference is to stimulate discussion of IP law through a variety of mechanisms. This year’s conference featured a keynote speech by Quentin Palfrey ’02, former senior advisor at the White House Office of Science & Technology Policy, and an opportunity for attendees to examine current IP issues through participation in two case-study groups.
The one program facet that has remained constant since the first IP conference, according to Fisher, is a judges panel, and this year was no exception as six federal circuit and district court judges provided insights into the workings of their courts and advice to lawyers.
In welcoming remarks preceding the judges panel, HLS Dean Martha Minow cited the importance of innovation to the U.S. economy.
“(N)o economy will survive in the future unless it creates the climate of intellectual-property rules and dispute-resolution techniques that support and sustain innovation while at the same time protecting the investments that people have made,” she said. “This is perhaps the most interesting and challenging time for these issues that any civilization has ever encountered; and, frankly, the future of our country turns on whether or not you get it right.”
The judges had several recommendations to IP lawyers on how they can help to get it right.
Timothy B. Dyk ’61, circuit judge at the U.S. Court of Appeals for the Federal Circuit, stressed the importance of writing good briefs.
“The first thing to remember is that the glamor boys and girls making oral arguments are much less important than the people writing the briefs,” he said. “The brief is far more important than the oral argument. This is your chance to lay out your theory of the case and it’s going to shape the way the judges view the case.”
He also emphasized the importance of forthrightness in presenting an IP case.
“You’re trying to explain something to judge who usually doesn’t know that much about the technology and perhaps even the legal issue in the case,” he said. “You have to explain to them what’s going on.”
But if a case has a weakness, lawyers are making a mistake if they try to ignore or minimize it, he said.
“I find it very irritating to read an appellate brief where there’s a big problem in the case and the opening brief makes no mention of it,” he said. “You’re better off surfacing it and trying to respond to it at the outset rather than waiting for the reply brief.”
Judge William G. Young ’67 of the U.S. District Court for the District of Massachusetts, echoed Dyk.
“You’re teachers,” he said. “That’s what it means to be a zealous advocate—to teach the existential reality that within the legal framework has to be wrestled with by the judicial officer. … Remember that this is a specific case that rests on factual development within a legal framework. Teach that case.”
In his keynote luncheon speech, Palfrey described how the Obama administrations have responded to an initial sense in 2008 and 2009 that “maybe we were losing our edge, that maybe other countries were getting better at innovation.”
These concerns ultimately led to the creation of the Leahy-Smith America Invents Act of 2011, which he said has reduced the patent-application backlogs that had been overwhelming the U.S. Patent Office by, among other things, expanding the office’s examiner corps from 7,000 to 11,000 people.
He also spoke of the Administration’s opposition to the Protect IP Act (PIPA) and the Stop Online Piracy Act (SOPA) for being too restrictive.
“Sometimes you’ve just got to say, ‘Over my dead body,’” Palfrey said. “One of the proudest things from my time in government is having been part of a handful of people who said that it’s really important that we communicate to the world, as well as to Congress, that the President won’t sign this, that the way that this is structured is going to mess up the structure of the Internet, that it’s not designed to solve the problems that it’s created, and the consequences are too severe.”
A key executive-branch priority for IP policy in Obama’s second term, he said, is a focus on problems with the patent-litigation itself. Citing recent revelations that both Apple and Google spent more money on the patent system and patent litigation than they did on research and development, Palfrey said there is evidence that “something is broken that we should figure out how to fix.”
Another systemic problem he said, is “patent trolls,” which refers to people and companies who receive patents that they use aggressively against alleged infringers, oftentimes with no intention to manufacture the product and with an apparent sole goal of using the patent to achieve monetary settlements.
One way to deal with frivolous litigation, he suggested, would be to empower judges to throw those cases out.
“In the patent litigation system, it is very hard to discipline the assertion of a near frivolous claim,” he said. “It’s very hard for a judge to say, ‘You really shouldn’t have brought this claim.’ In other parts of civil litigation, it is much easier for a judge to decide that something has passed beyond that threshold. The system does not do a good job of distinguishing between something that is tolerable and something that should be thrown out.”
Before and after Palfrey’s speech, attendees took part in two case studies in which they examined theoretical situations resulting from recent actual court decisions, broke into small groups, and shared their conclusions.
The case-study technique, long a fixture in business schools, is a more recent pedagogical tool in law schools and one that Fisher considers useful within legal academia and in conference settings. In both of the case studies, he said, “our purpose was to examine, from all angles, the problems at issue and to improve the participants’ understanding of them.”
The co-chair of the event was William F. Lee, Eli Goldstein lecturer on law at HLS and a partner at WilmerHale in Boston.