Breaking Bread with the Judges at AIPLA


The annual meeting of the American Intellectual Property Law Association (AIPLA) was held last week in Washington, DC at the Marriott Wardman Park Hotel.  As always, the event was extremely well attended, including a strong and ever increasing presence of attorneys from foreign firms.

There were many events and festivities associated with the annual meeting, and it would be impossible to give a complete rundown and report on the entirety of the seminal AIPLA event of the year.  For those who have attended, you know it is impossible to even attend the entire event, with so many concurrent panel discussions, receptions, private events and time devoted to catching up with old friends, making new friends and meeting with business partners.  Nevertheless, allow me to run down three of the larger events.

Lunch with Chief Judge Smith of the PTAB

Lunch on day 1 featured a speech by Judge James Smith, Chief Judge of the Patent Trial and Appeals Board.  Judge Smith, who is an impressive man held in extremely high regard both inside the USPTO and in the practitioner community, gave the audience of at least several thousand an address about the state of the Board.  Judge Smith explained, in part:

  • Currently there are Judges housed in two different locations — Alexandria, VA and Detroit, MI.  In the not-too-distant future, there will be Judges stationed in five cities, adding Judges to the Silicon Valley, Denver CO and Dallas TX offices. Each Patent Office location will have at least 12 Judges in place by the end of fiscal 2013.
  • “We envision we will be able to make the wait for ex parte appeals in the reexam area diminish” while still taking up new responsibilities under the AIA.
  • So far there have been 38 inter partes reviews initiated and 13 covered business method patent reviews initiated.  ”We intend to make any adjustments necessary” to ensure that these new cases can be handled quickly and appropriately as demanded by the new legislation.
  • Cases are being assigned to PTAB Judges based on expertise of the Judges, while still allowing for the expertise of the Judges to expand.

Lunch with Judge Dyk of the CAFC

On the menu for lunch on day 2 was a speech by Judge Dyk of the United States Court of Appeals for the Federal Circuit, filling in for Judge O’Malley who was unavailable at the last minute attending to personal matters.  In his speech, Judge Dyk discussed the importance of judicial clarity, which he described as critical because “legal issues underpin patent doctrine across the board.”  He explained:

  • The academy celebrates the lack of clarity at times.  “One article suggests the Federal Circuit should take a more holistic view of patent law – whatever that means.”
  • “Congress has recognized the lack of clarity in patent law has been a problem going back a long way.”  This is, of course, what ultimately lead Congress to create the Federal Circuit.  “While Congress’ goals have been achieved to some extent, in my view there is still a long way to go.”
  • “Providing better guidance… while important, isn’t the primary reason for clarity.”  The law needs to provide clarity “so businesses and the entrepreneurial community can execute their business plans.”
  • After the AIA, Judge Dyk explained that he does not think we can look to Congress to solve the lack of clarity problem, saying that he does not think new patent legislation is likely.  Thus, we will need to rely on the USPTO, Federal Circuit and the Supreme Court.
  • “As you know, the Supreme Court has shown a significant interest in patent cases… The lesson is that the Supreme Court is going to continue to hear our cases and we can expect to hear from them frequently.”
  • The largest laugh line came when Judge Dyk said: “The Supreme Court is not known to interject clarity in its opinions.”  Laughter abounded.  He then went on to say that while there have been some cases where the Supreme Court has not been clear, there have been many others where they have added clarity to the patent law.  “I do not think the Supreme Court has an aversion to clarity,” but acknowledged they don’t seem to always achieve that goal.
  • “The Supreme Court… has served our nation well for several hundred years.  The bar should not think the Supreme Court has nothing to contribute to patent law,” but rather “should be grateful that the Supreme Court takes a continuing and intense interest in that work.”

Judge Newman Receives AIPLA Excellence Award

On Friday, October 26, 2012, at the Gala dinner, Judge Pauline Newman of the United States Court of Appeals for the Federal Circuit received the 2012 AIPLA Excellence Award.

After a video montage praising Judge Newman, her career, what she has meant to the field of patent law and what she has meant personally to those who she has touched, it was Judge Newman’s turn to speak.  She spoke briefly, and not about herself. Judge Newman was easily the most accomplished person in the banquet hall on this particularly evening, and the one who we all came to honor, yet she used her remarks to speak of how we are all on the same team, and how we need to stay strong and keep up the fight for what we know is right.  She said:

We are all here with the same purpose, the same concept, the same motivations and the same understand of the critical importance to the nation of all the things we are doing.  What you are doing and what this Association is up to and to the extent that the judiciary is involved, to do our best. We are all in this together and I encourage us to stand firm and do everything we can.  The future of the nation depends on us and our devotion to truth, and getting it right and justice.

Judge Newman is truly a treasure and deserving of this award.



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