[Ip-health] IP-Watch: What’s Coming On IP For The US, Geneva? An Interview With Q. Todd Dickinson

Thiru Balasubramaniam thiru at keionline.org
Mon Nov 21 07:47:54 PST 2016


What’s Coming On IP For The US, Geneva? An Interview With Q. Todd Dickinson


Q. Todd Dickinson is a shareholder at Polsinelli law firm, and was director
of the United States Patent and Trademark Office (USPTO) under President
Clinton, a former lead IP counsel for two Fortune 50 corporations, and most
recently executive director of the American Intellectual Property Law
Association (AIPLA). In an interview with Intellectual Property Watch on 18
November in the margins of the IP Dealmakers conference in New York,
Dickinson discussed US prospects for national and international IP policy
after the presidential election, changes in Geneva, reform of US IP law,
and repairing relationships.

INTELLECTUAL PROPERTY WATCH (IPW): Could you tell us about how you see IP
policy in the US and Geneva going forward?

Q. Todd Dickinson

Q. TODD DICKINSON: The question now that we’re just past the US election,
which was obviously a big surprise, is how much we don’t know. If Mrs.
Clinton had won we could have had a lot more definitive answers, but with
the surprise election of Trump we really don’t know in a lot of places, and
this is one of them. We are traditionally heavily involved in WIPO, for
example, but we’re involved via the PTO [US Patent and Trademark Office]
and we don’t know who PTO director is going to be. The US traditionally has
a deputy or assistant deputy director at WIPO [the World Intellectual
Property Organization] and that usually changes out, not through a formal
process, but it changes out and we don’t know that. And the ambassador to
the WTO, who has traditionally, at least in this administration, been very
involved with IP affairs, as well as the WIPO ambassadorial job. So those
would be the things of interest to us in Geneva.

We also have a strong tradition of having an [IP] attaché, and sometimes
even more than one, in Geneva. That’s a key job … that will change with the
leadership of the PTO, so that may change too.

IPW: Are there any key issues you would like to see in Geneva?

DICKINSON: With candor, I would hope that the relationship between the
senior management, the leadership of WIPO and the United States would
continue to heal. During this past administration for obvious reasons it
was very strained, and I think now that things have come to where they’ve
come and things have settled down, I think it’s time to put things back
together again.

IPW: On the policy front, is there a patent issue you’d like to see coming
up there again?

DICKINSON: We’re always interested in harmonisation, and I’ve talked to Mr.
[Francis] Gurry [WIPO director general] and others about this many times
over the years, whether they could take a leadership role in terms of that
process. He has been involved – and this is a positive I think – in
accommodation of the IP5. IP5 had on its plate international harmonisation.
My understanding is in the recent meetings there has been a split in the
American delegation and there is a question mark about that now, but I
think by the offices he is regarded as an honest broker and could play a
key role.

IPW: Is there more of a need for harmonisation at this point because the
way things have changed at the global level?

DICKINSON: From the Americans’ point of view, what’s interesting – or sad –
is we spent 10 years trying to improve our system and we sort of backfired.
In many ways, the patent system is weaker in the United States and that has
a global impact in a couple of ways. First, it gives our global competitors
an opportunity to get ahead of us, and you’re seeing that in various
places, China, and Europe to some degree, though Brexit may still be a
question mark there. But it also causes American-based IP property owners
to look to Europe, for example, as a place they can get better, more
effective rights. We’re seeing, amazingly, why don’t we use the European
standard for eligibility since the American standard is so confusing, why
don’t we go to the courts in Germany since we can get a much better
[ruling] quicker than the United States. I think that is a shame. I know
the administration always feels that the IP system in the US is the gold
standard. But if gold could tarnish, it would be a little bit tarnished.

IPW: For the US positions on IP in Geneva, can you describe what kinds of
people are needed at this point in time?

DICKINSON: Over the last few years, it’s gone back and forth in areas of
responsibility. When Mr. [James] Pooley came in [as WIPO deputy director
general for patents], Mr. Gurry sort of split the job he had. And when Mr.
[Michael] Keplinger came in [as deputy director general for copyrights], we
were in the copyright area. I’m an all-IP guy, but I would prefer that we
have a leadership role on the patent side. We do PCT [the WIPO-managed
Patent Cooperation Treaty] very well, obviously, and very effectively, but
we provide an awful lot of the funding through that mechanism, and I think
that would suggest – negotiations are at the top – but I think that would
suggest a continuing growth in patent leadership.

IPW: Now looking at the US. With the change in administration, everyone
agrees there is a lot that is unknown. But can you tell us what you
anticipate or what you would like to see at the national level?

DICKINSON: Well, I would have liked to have seen a different outcome. I was
an adviser to the Clinton campaign, and knew where all that was heading
because of the plan that was done. I think the fact that the Trump campaign
was not that organised all along – and frankly they didn’t think they were
going to win so they didn’t do as much organisation – there’s a lot of
uncertainty. We’re [at this meeting] something like less than a half-mile
south of where Trump Tower is and they’re shuttling in and out every day,
past the Gucci store and up the elevators and trying to figure this out.
Because they’re so far behind, and IP is an important but sort of mid- to
high-level issue, it’s not right at the top, and Commerce is not usually at
the top, I think we wait a little while.

[Under Obama, USPTO Director] David Kappos was nominated in April, and the
process for his choice, the interviews were in February. That wouldn’t
surprise me this time. It would be easier if we get a Commerce secretary
right off the bat. With the Obama administration we went through three
nominees, two nominees till we got to Gary Locke. That held things up. It
also depends on how much leeway the personnel transition people and the
White House are going to give to Commerce. Secretary Locke had a lot of
input, and in fact I think made the final choice. But with Jim Rogan, on
the other hand, the Bush administration basically guaranteed him that job,
it was announced in the interregnum period. So it’s still an unknown.

IPW: What’s needed right now?

DICKINSON: Well, I think among the open questions is, [USPTO] Director
[Michelle]Lee has done a nice job in this last period sort of maintaining
the office, and putting a focus on quality, which is always important. But
there are some open issues. We heard them [at this conference], and I was
at a seminar on Monday, there’s an awful lot of foment around the way the
PTAB [USPTO Patent Trial and Appeal Board] is administered, how decisions
are coming out, there’s concern about potential abuse, concern about
one-sidedness, and I think that would be one area which could be looked at
pretty soon.

The other is the key one that’s always there, which is to engage with the
stakeholder community. Where people got in trouble in the past was they
either did not come from the stakeholder community or didn’t pay attention
to it, and that complicates things a lot. Having been that type of
appointee and seeing others, I think you’re well-versed to find somebody
who has management experience, comes out of the stakeholder community,
preferably has an association or other cross-industry experience, and
somehow has the international piece, which I didn’t know much about when I
came in and I think is very important. Names we’ve heard floated [include]
Phil Johnson, who was almost nominated last time around, at J&J [Johnson &
Johnson company), is a candidate people talked about and there are others.

On other issues, a thing I would prefer is in the actual system, that we
continue what we’re doing at IP5; I think that’s extremely valuable. It’s
not well-recognised, candidly. We need to publicise it more. But it’s an
administrative harmonisation. After years of sort of not doing anything,
the stakeholder folks came into that process in the trilateral and prodded
them along to where we got to now, where you’ve got the Global Dossier,
we’ve got all sorts of projects. The Global Dossier would be an example
where all five of those offices can look at what the examiners in each of
those offices have done on a particular case. Pretty soon the entire public
will be able to. I think that’s really important.

IPW: Do you think this area is very subtle and requires a highly skilled
person or anyone could come in and say we want to continue doing what we’re
doing and focus on protection, for instance?

DICKINSON: Right now, enough questions are there among the stakeholder
community on issues like interpretation of 101 patent eligibility, and
what’s the PTAB doing, for example, which I think are now even higher
priorities than is patent litigation reform. At the moment, I think it
requires somebody with a more technical knowledge of those issues. There
could be time when one could just be a strong ‘manager-manager’… but when
you combine the talent it’s better.

IPW: Given the uncertainty following the US election, what is the risk to
the IP system and how important is the decision on how it is handled?

DICKINSON: I think it’s very important. One thing I’ll be looking out for,
which could be either good or bad – at least it’s being discussed right now
– is the Trump campaign had a very poor relationship with the high-tech
community, and Silicon Valley in particular. To the extent of personally
calling out of [Apple CEO] Tim Cook and [Amazon CEO] Jeff Bezos, which is
very disappointing, and was unfortunately the tenor of the campaign. So I
think what a lot of people are looking at is are we going to repair those
relationships and how we’re going to do it. However, having said that,
President Obama views himself as a high-tech president, and he’s proud of
it. Others have said to a fault, too much leaning in that direction. We had
an event where a representative from the inventor community was present and
very senior campaign officials were there, and said, I’m a small inventor,
I read in the paper that Google lobbyists are in the White House at least
once a week and twice more than any other lobbyists. How can I compete with
that? he asked. I think that was a very well-framed question.

I think there’s also discussion, with as much antipathy as there is toward
high-tech, there’s more of a direct relationship with the pharmaceutical
and biotech communities. They argue that we’ve had two high-tech [USPTO
directors] in a row, Kappos and Lee, maybe it’s time to give one of the
other industries a break. We’ll see.

IPW: So where’s our IP system going to be in four years?

DICKINSON: Our IP system is pretty robust and resilient, and I would expect
it will survive. But we have some issues we’ve got to work out.

IPW: On trade, given the statements of the president-elect, how do you see
that affecting IP?

DICKINSON: I was intrigued that trade issues were such a big piece of the
election to date, on both sides. I helped negotiate a few of those treaties
on IP and counselled on others, like TPP and the Korean one was before, and
the IP provisions in those were valuable and needed and helped
harmonisation. Other people didn’t like other provisions, I can understand
that, but from an IP perspective they were positive, so there’s a little
disappointment – or a little question rather – about where we’re going on
trade given that debate. Who’s going to be the US Trade Representative. At
the moment, we have Amb. [Robert] Holleyman, who is a deputy US Trade Rep,
who’s an IP-specific person. Is that going to continue on? The one thing
Mr. Trump has spoken to at all in the IP sphere is cracking down on Chinese
trade secret theft. So where the enforcement and trade interface occurs, is
he going to go the WTO and make a big stink about these things, and do we
get retaliation on IP? That’s a big question. As we like to say,
campaigning is one thing, but governing is quite another.

IPW: If the trade agreements advanced things on IP, does taking those away
put IP at risk or just not move it forward as much?

DICKINSON: I think it’s the latter. But since most of these processes are
about moving forward, you like to move forward. That’s I guess the
disappointment. I did a lot of traveling with AIPLA in a number of TPP
countries, in Asia, Japan, Vietnam, and there was some scepticism there
about the whole thing. So to see that much scepticism in my own country is
– I don’t see it happening now. I think it’s probably done. I think Obama
thought he had a window, particularly if Secretary Clinton had won, because
it’s one of those singular issues where Republicans and this administration
happened to be aligned, versus his own party.

And to say [as did Trump] you want to abrogate treaties, how far does that
extend? We’ve got a lot of IP treaties. I hope they’re not at risk.

IPW: Some years ago, there were calls by some in US industry to pull out of
WIPO if it could not achieve the goals of the US, such as patent
harmonisation. Now I’ve heard some people in the WTO wondering if the US
will pull out of there?

DICKINSON: I think it’s an interesting question. Trump has said he’s not
wild about multilateral trade agreements. On the other hand, he said he’s
going to do all these things to enforce my way against others, and the
mechanism to do that happens to be at the WTO.

[On WIPO] I voted against the budget I think every time I was there. It is
a concern of our stakeholders that we pay a rather significant amount of
money through the PCT to the operations of the WIPO, and there’s a sense
that we don’t get back that investment. Now we understand that we share,
but one of the key questions is going to be, the [WIPO] Development Agenda,
is that still relevant to this administration? They did a lot of copyright
stuff. Copyright’s not paying anything. So, you know, question mark.

IPW: Thank you.

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