Off hiatus, and the End Of IP

I have been on hiatus from Claimed Elements for a little while (which is official-ese for "I had other more pressing things to do").  However, much like the leaves change, so does my desire to blog.

A lot of this change in desire has come from some recent developments in the "End all IP" Troika of economists, open source software mavens, and Pacific Rim Software Pirates.

Recently, a study produced by the St. Louis Fed ( Paper can be found here) makes a strenuous call for the abolition of patents.  In brief, the authors conclude that there is no benefit to innovation by adopting a patent system. Let me state 1) that the St. Louis Fed has better things to do than opine on Patent Law. 2) They really should have better things to do than opine on Patent Law (Like calling for an increase in marginal lending practices so as to allow people easier debt servicing (oh, you don't like it when Patent Lawyers go all "economist speak", well turnabout is fair play.")

Obviously, I disagree, and not just because I like getting a paycheck.  There is a major fallacy lurking at the heart of the study.

Comparison.

Now, I grant you that Patent law has gotten a bit out of hand (something I call the Locust Syndrome, but more on that another time), but there is absolutely no way to determine if a system with or without patents produces more innovation.

Why. Because we don't have a second, alternative reality Earth to use as a control.  The authors focus (as most anti-IP people do) on Software Patents.  The problem is that they can not point to another first world, industrialized nation with the infrastructure and educational system necessary to produce sophisticated software code. We can't say that in 1520, the rate of innovation was better or worse than the rate of innovation today. The circumstances of innovation and progress are the end result of  historical accidents, low hanging fruit, and economic factors.

To paraphrase Neal Stephenson "in the early 21st century, America only did three things well, make movies, make music and write the best code."

The author's have not provided an example of a country that is producing superior, or more innovative software compared to what is developed by companies taking advantage of the U.S. Patent system.  The reason is obvious, in an fully integrated world, it is impossible to tell what effect the Patent system has on developments country A vs country B. Without a control group, we are merely grabbing at strawmen to explain why our version of reality is the right one.

So lets all take off our sandwich boards and calm down.

Jordan Garner (Jgarner@leasonellis.com)
www.leasonellis.com

Res Ipsa Loquiterminator

Res Ipsa Loquiterminator:
         
         French for "I have been replaced by a computer" is a phrase that you are going to hear more and more in law firms. Not really, since I can't imagine anyone at a law firm using such a sweet portmanteau. (Credit given to my good friend M.Cabrera Esq. for coining the term)


Regardless, what you will hear is younger associates griping about how they are unable to make their hours in light of the rapid adoption of Predictive Coding in document production.  If you want to know why computers are going to start eating your lunch, you can check here.  


For those with an aversion to clicking on the Wall Street Journal, it basically summarizes two recent civil cases where predictive coding (that is, computer sorting of documents for discovery based on relevancy of content) were allowed.  Importantly, these permissions were given over the objection of opposing counsel. So the gates are wide open to our new robot masters. 


Super, what does this mean for budding IP attorneys?  Well, document discovery in IP litigation (especially in the pharma area ) was/is pointlessly time consuming. While it will probably still be necessary for some IP specialists (read: doc reviewers with a scientific background) to review large reams of data, it is likely that the time of the 4 and 5 room discovery teams is coming to a close. This means even less demand for specific practice area qualifications (the Maw grinds slow and exceedingly fine) .  While this won't happen over night, it most likely will happen in the next few years. 


I am reminded of a document review in which I participated, where most of my time was spent sifting through bills of sales looking to see if the technology in question was "on sale" prior to the 1 year date.  Most of the documents I was looking at were internal order forms.  I quickly realized these were pointless, even though they had some of the "core" keywords plastered all over them.  


I imagine that predictive coding will allow case managers to make broad sweeps of this type of relevant (but not really relevant) data prior to bumping things up a step in the food chain.


It occurs to me that another place where Cybercoders (wouldn't that make a great Kids TV show...no) could come in handy is the new Inter-Partes Procedures instituted in the AIA. Limited discovery is now allowed.  Normally, this "limited" discovery would be limited by the cost and time involved.  However, with the use of Cybercoders, you could access huge amounts of data for minimal cost. I would wager that more and more Re-Exams are going to employ predictive coding as part of there opening gambits.  


Where I think human IP-based doc coders will still have the edge is searching for "best mode".  It is incredibly difficult for a computer to determine if a lab notebook or result table is disclosing the best mode for carrying out the disclosure.  Furthermore, IP coders are probably still going to be tasked with searching for deficiencies of enablement, or documents that purport to show that the invention failed to clear a statutory bar.  


Unfortunately for Human IP Coders,  Congress Passed the AIA with a specific section that minimizes the importance of both "Best Mode" and "Enabling Disclosures" in invalidating a patent.  Never fear, when tireless thinking machines drop the ball, Congress can recover that fumble and spike it on your career.  

Success Against Scammers

In a previous post , I discussed how to not get taken in by Trademark scammers. Well, I am happy to announce that Leason Ellis has taken the fight to the con-men and put at least one of them out of business.  In the consent decree, USA Trademark Enterprises ( a notorious scammer that preyed upon unsuspecting trademark applicants) agreed that:

Defendants warrant and represent that they made substantial sales and shipments of the Catalogue in the United States, including New York State, and have made good faith disclosure to Leason Ellis of financial records concerning such sales;

Defendants warrant and represent that, within fourteen (14) days of the Settlement Agreement separately entered into between Plaintiff and Defendants (the “Settlement Agreement”), they shall permanently discontinue marketing, selling, offering for sale, and distributing the Catalogue in the United States per the terms of the Settlement Agreement;

Defendants warrant and represent that, within fourteen (14) days of the Settlement Agreement, they shall never again conduct business in the United States in the field of trademarks or, more generally, in the field of intellectual property; and

USA Trademarks and its owners, officers, stockholders, employees, agents, servants, affiliates, subsidiaries, attorneys, and all other persons in active concert and participation with it, including Timea Csikos and Andras Nemeth, shall abide by the terms of this Consent Judgment.

I am quite proud of the work my firm has done in putting these scam artists out of business. Congratulations are in order.  You can read more about it here.

Patenting Deliciousness

This is not a picture of patented deliciousness. Original photographer found here. 

The Internet is reporting that Oklahoma State University (Go Cowboys!) is attempting to patent a "cut" of steak.  While general reporting has focused on the fact that this new improvement in the Steak-y Arts will be called "The Vegas Strip" ( which does sound delicious) no one is focusing on the fact that the Inventors pretty much opened themselves up to a Sec. 103 Rejection based on the interview.  

For those who don't know (and why you would be reading a patent blog without knowing about patents...) merely filing a patent on something is no guarantee that you will actually get a patent on that thing. A lot of  digital ink has been used to decry the patent system as innovation restricting.  However, these garment rending positions are usually taken by people who have less than a common familiarity with the workings of the patent system. Once you apply for a patent, that application (helpfully called a "Patent Application") is examined by a Patent Examiner, and is not automatically turned into a patent.  

It is that Patent Examiner's job to determine if your patent application meets certain legal and procedural hurdles.  In this case, hopefully the patent application for Vegas Strip is given to a Patent Examiner who is an expert in Tastiness (I have a PhD in Tastiness from Finger-licking University, but I don't like to brag). According to OSU, the patent is not for the steak itself, but for the series of cuts used to make the steak.  For those of you aware, OSU just gave away that the patent is to a "Method" and not a "thing".  So the Tasty Expert Patent Examiner would look at this method of steak cutting a see if it has been done before, or if it is obvious (Sec. 103) in light of previous steak cuttings methods.  

The spokesperson for OSU's Steak Patenting Initiative (I just make up the initiative part), when asked how the method works said: 

"If i told you, it would be a hint to where this muscle is," he said. "A knowledgeable person would say, 'Aha!'"

Well, if that doesn't sound like "it would have been obvious to one skilled in the art" I don't know what is.   So, what's the point.  Well, one point is to not give interviews about your specious patent applications. 

A second, better point, is to not freak out every time someone says that they filed for a patent on the color blue, or a user interface, or some stupid Facebook integration program.  Merely filing the patent does not get you from A to B.  The patent office has plenty of mechanisms for weeding out bad, and obvious ideas, and does a pretty good job at it.  I think we can all sleep safely knowing that Oklahoma will not corner the market on deliciousness. 

Jordan Garner, Leason Ellis, Patents

Getting Hired in the IP Field

 Regardless of how you find yourself less than gainfully employed (or about to be less than gainfully employed), it is helpful to know that all IP associates are not equal in terms of their supply / demand curves. 

It is generally assumed that all IP associates (and partners) tend to land on their feet after a major event like Dewey. This, I can say from personal experience, is not always the case. Depending on your technical background (you have a technical background, right?) the market tends to set the going rate of demand differently for different kinds of associates.

So, how does one increase their desirability in terms of greater chance of employment? Well, going to a really good law school is really helpful, but not an indication of success.  Going to a decent (not terrible) school and doing really well is probably not better than going to an excellent law school and not doing so hot, but it is a decent consolation prize. Obviously the preferred option would be to go to a good school and do really well (and date supermodels). So, taking a clutch of associates, all of whom did well in undergrad and went to an excellent law school, who gets hired first? Who is in demand?

Well, if you have been on any recruiter websites (or get the e-mails) you can quickly create a ranking based on demand. While the list moves around a bit depending on Litigation or Prosecution emphasis, the top spots of the list remain largely intact. So who is on top: 

Electrical Engineering

Computer Science

Mechanical engineering

Chemical Engineering 

Civil Engineering

Pharmaceutical / Biotech (PhD. level) 

Biology (Non- Phd.)

Trademark

The best way to get a job in the current IP landscape is to have an electrical engineering degree or a computer science degree.  The hardest way is to not have a technical degree at all. This doesn't mean that Trademark Associates do not get hired (we have hired a few recently), it just means that the supply greatly outstrips demand, and will for the foreseeable future.  

Jordan Garner, Leason Ellis, White Plains NY.

Market Forces

No, this post is not about the excellent Tech-futuristic thriller by Richard K. Morgan (although it is awesome and can be found here)

In light of the continuing mess at Dewey ( if you are unaware, see here, here and here) it is probably helpful to think about price discovery schemes for associate compensation in the current job market.

If you weren't aware, the job market for associates (new and old alike) is going through what economists call a "Market Clearing".  This is just fancy way of saying that the supply is currently outstripping demand, and either the supply will need to contract, or the price for the supply will have to come down.

If you have spent anytime talking to the management of larger law firms, you know that there is no such thing as a permanent decline in salary for associates. The reputation deficit that comes from such a move is considered to be far more damaging than the price savings. Now, this does not mean that it doesn't happen.  In the dark days of '08-'10, many a law firm took the "lowered tier" option of differential associate payments and tried to spin them as some sort of revolution in Associate salary / price discovery.

 However, most associates are not in a position where they are given the option of voluntary wage cuts in exchange for continued employment. The end result is that the price discovery is impossible in the legal market, and the only way to get the market clearing effect is to reduce the supply of associates, often through forced attrition.

However, there is an alternative:

The alternative would be to allow the associates who are performing at an acceptable level to continue to work at the firm, but at a greatly reduced salary.

It would be possible to retain two associates for the price of 1. Basically, offering two similarly situated associates the ability to "share" their salary and maintain employment.  For high-year associates, it is possible to still obtain a 6-figure income on that 1/2 share. This allows the human capital developed by the firm to still be utilized, and the associate to avoid the stigma of a growing employment gap on their resume.  Unfortunately, the current practice of picking one associate and dismissing the other does nothing to help discover the true price of the associate and results in a wasted investment for the firm.

Either way, the lack of utilization of human capital (in the form of associates) is something that the legal profession is going to have to come to grips with.

Jordan

Declining Prospects

 This is not really a post on anything other than the up-coming book by Michel Trotter titled "Declining Prospects".  If you have been paying attention in the legal sections of the NY Times and Wall Street Journal, you know that the once venerable white-shoe firm "Dewey & LeBoeuf" is on the verge of collapse.  One of the reasons is what I called in a previous post "The Maw".  That incessant desire to increase compensation in the face of declining client willingness and decreased economic opportunity. 

I am no Harvard trained economist / lawyer, but Michel Trotter is. Judging by his interview regarding the future of the legal profession found here, we are of the same opinion on the ills facing future. I for one am looking forward to reading his book, available "soon" from Amazon. Hopefully a lot of the senior partners in the Big Law are as well. 

~Jordan Garner