Symposium on Emerging Intellectual Property Issues:
The Future of Innovation and Intellectual Property
September 18, 2015
(Dallas, TX) On September 18, 2015, the SMU Dedman School of Law launched the Tsai Center for Law, Science and Innovation with a symposium focused on the future of innovation and intellectual property—and it was a rousing success. Over 250 people registered for the symposium, which the Tsai Center was able to hold without charge to attendees through the generosity of the Center’s anonymous founding donor. The quality and depth of the lineup of speakers and their presentations were outstanding and impressed all that attended. One attorney even remarked that the symposium was the best continuing legal education event she had ever attended in her nearly thirty years of practice. And the content of the symposium was particularly appropriate for the occasion: the speakers continually challenged those in attendance—and the intellectual property community in general—to engage in rigorous study and improvement of the intellectual property system for the benefit of inventors, innovators, and ultimately the public.
It is not hyperbole to say that the keynote speakers included three of the foremost thought leaders in the worldwide intellectual property law community: (1) Paul Michel, a former Chief Judge of the U.S. Court of Appeals for the Federal Circuit, which is the court in the United States that has exclusive jurisdiction over appeals in patent infringement cases and from the U.S. Patent and Trademark Office; (2) David Kappos, a former Director of the U.S. Patent and Trademark Office; and (3) Stanford Law Professor Mark Lemley, one of the leading intellectual property law professors in the United States.
But the high quality of the speakers was not limited to the keynote speakers; the panelists were also of the highest quality. They included Mark Werbner, one of SMU’s alumni who argued at the Supreme Court in its last term in a patent case; three judges who focus their attention on intellectual property law, including Scott Boalick, who is one of the two Vice Chief Judges on the U.S. Patent and Appeal Board; Rodney Gilstrap, a local district judge who by far handles more patent litigation than any other district judge in the United States; and Barbara Lynn, another local judge and an SMU alumnus who directs the local Intellectual Property Inn of Court, which is named in her honor. Other panelists included three leading law professors at the forefront of research in the areas of patent prosecution (Melissa Wasserman from the University of Illinois Law School), patent litigation (Tim Holbrook from Emory Law School), and copyright law (Peter Yu from Texas A&M Law School). Finally, one of the most interesting and challenging panels included two entrepreneurs who brought a unique perspective to the symposium, describing how the law benefits and challenges engineers and entrepreneurs as they seek to invent and innovate.
The symposium’s events began Thursday evening, September 17, with a dinner for the speakers, particularly those speakers who traveled to Dallas. The dinner was well attended and generated interesting exchanges. Dean Collins, Prof. Robinson, Prof. Taylor, and two law students attended on behalf of the Tsai Center and the SMU Dedman School of Law. Speakers in attendance included Chief Judge Michel; Faith Hochberg (a retired district and the moderator of our judges’ panel); Judge Lynn; David Kappos; and Professors Holbrook, Wasserman, and Yu. The group enjoyed discussing the Tsai Center and its future research, programs, and events.
The morning of September 18th
, Dean Collins, Prof. Robinson, and Prof. Taylor first held the inaugural meeting of the Tsai Center Advisory Panel. The panel includes various leaders from industry, technology accelerators, law practice, local universities and medical schools, and from the broader faculty at SMU. Professors Robinson and Taylor presented their goals for the Tsai Center and solicited feedback and help from the members of the Advisory Panel to achieve those goals.
After the Advisory Panel meeting, the symposium began at 8:30 A.M. As mentioned above, over 250
people registered for the event, which indicated an overwhelming interest in the Tsai Center and its symposium. Attendees filled the Hillcrest Classroom of Underwood Law Library to capacity, and the Tsai Center had to open an overflow room with simulcast video of the symposium. Those in attendance included students, professors, attorneys, and various other members of the University community. All that attended not only enjoyed the quality of the speakers and presentations, but also a continental breakfast, box lunch, and networking reception after the conclusion of the symposium.
Dean Collins and Prof. Taylor gave opening remarks, highlighting the importance of the Tsai Center, thanking its anonymous donor, and discussing the appropriateness of the focus of the inaugural event given the Tsai Center’s mission to explore the intersection of law, science, and innovation.
Chief Judge Michel gave the opening keynote presentation, challenging the audience to think deeply and to react proactively to help Congress in the courts solve problems confronting intellectual property law. He indicated that the intellectual property community is at a “major crossroad,” and encouraged the audience to think of themselves as the experts in the debate over how intellectual property law should adapt to meet new concerns. He highlighted what he believed to be the two most important things in the debate: reliable facts and reliable numbers. He also discussed what he believed to be some of the biggest problems confronting the patent system: uncertainty and the high cost to enforce valid patents. In the end he encouraged all in attendance to take part in a dialogue over the future of innovation and intellectual property, because each person has an important role to play in that dialogue.
Prof. Taylor next interviewed Mark Werbner about his experience representing a patentee all the way
from the Eastern District of Texas through the Federal Circuit to the Supreme Court. Mr. Werbner explained how he—in his first patent case—won a large verdict at the district court, which included two trials because of critical misstep by his opposing counsel. In terms of his overall experience using the court system to reward his client’s inventiveness, he described how surprised he was that many aspects of patent law are not settled, and that there are so many policy issues in play in patent infringement litigation. In terms of his representation of a patentee at the Supreme Court, he described the process of seeking support for his client’s positions from the U.S. Solicitor General’s Office. He also regaled the audience with stories about his Supreme Court argument, including the advice he received that “there are only two people that argue before the Supreme Court without notes, and you are not one of them.” Proud of his victory at the Supreme Court, he nevertheless expressed gratitude to his client for not only hiring him but also continuing to support him throughout the case, even when the client’s opponent in the litigation hired a leading Supreme Court practitioner and former Solicitor General of the United States to represent it at the Supreme Court. Mr. Werbner explained that what was important to his victory was the team he had around him to work on the case, a team that included both patent attorneys and trial lawyers.
Judge Hochberg moderated the judicial panel, and given her experience and knowledge of the issues confronting the judges on the panel she continuously challenged them to address significant areas of concern among practitioners. The panel discussed how the Supreme Court’s recent decisions on patent eligible subject matter have caused a sea change in terms of day-to-day practice, which has caused new challenges. By contrast the panel highlighted how the Supreme Court’s recent decision changing the standard of review of patent claim construction decisions has surprisingly not changed practice significantly. The panel also addressed the relationship of the USPTO’s new powers under the America Invents Act, and the desirability or need to stay parallel patent infringement litigation.
Prof. Robinson moderated the panel of law professors. Each professor gave a presentation highlighting his or her research. Professor Holbrook explained how courts have treated method claims less favorably than other forms of inventions and call for method claims to be placed back onto equal footing with other types of inventions. Professor Wasserman presented insights on the relationship between a patent examiner’s application grant rate and the year in which the U.S. Patent Office hired the examiner. And Professor Yu highlighted the territorial challenges posed by cloud computing to copyright law and identify areas in which adjustments can be made to promote the global distribution of cloud content.
Mr. Kappos served as the keynote speaker over lunch. He described how crucial IP-intensive industries are to the U.S. economy, and he stressed how strong intellectual property protection and enforcement will be critical to incentivizing investments in technology moving forward. Mr. Kappos described how society has experienced a fourth industrial revolution, focusing on use of the Internet. He stressed the importance of new, blended, nimble research and development models, as well as the importance of recognizing that innovation usually takes the form of incremental improvements. Mr. Kappos described intellectual property as society’s pension plan, because investment today in research and development pays significant dividends in the future.
SMU Adjunct Professor of Law Barton Showalter moderated the panel of engineers and entrepreneurs. This panel focused on soliciting feedback from users of the intellectual property system—engineers and entrepreneurs—to help inform the discussion of whether the intellectual property system is serving the needs of the innovation community. To that end, the panelists considered whether the law is spurring technological development or hindering it, and whether intellectual property is useful in the formative stages of a new enterprise or even required. The answers to these questions were often surprising and challenging. One panelist summed up the discussion by remarking that, if someone doesn’t have inventions that are worth patenting, why would anyone invest? The panelists considered perceived problems with the patent system. On the one hand, the panelists focused on the high cost of seeking protection for their inventions, particularly internationally. On the other hand, one remarked that it was only when they engaged in patent litigation that they realized the importance of the costly initial sessions when seeking patent protection. The panelists also highlighted the benefit of more cooperation between schools of engineering and schools of law to assist engineers and entrepreneurs.
Prof. Lemley gave the third and final keynote presentation. He used the occasion to publicly release the results of a long-term research project in which he and other professors studied the success of patent assertions in litigation. His presentation included an assessment of the outcomes of substantive decisions in patent cases, with a particular focus on particular technologies and industries. He highlighted that, overall, while we see significant change in the patent system, the system tends to equilibrate to a similar success rate over time, and he explained that the study indicates that patent litigation is “a pretty big roll of the dice.” In terms of particular technologies and industries, perhaps his most surprising finding was that biotechnology patents do not tend to do well in patent litigation. The upshot, however, is that the system is complicated, he explained. The result of his study is a more complex and nuanced picture of patent litigation, one that provided an important window into both patent litigation and the industry-specific battles over patent reform.
Prof. Robinson concluded the program by thanking everyone for speaking and attending, and by encouraging everyone to take what they had learned and to put it in to practice. As mentioned, after the symposium the Tsai Center held a networking reception, which was well attended. The conversation focused on the success of the symposium and the prospect for excellent research and future programs from the Tsai Center.