Patent trolls

Just your friendly neighborhood patent troll.  Beautiful image courtesy of WIPO illustrator, Bob MacNeil

Just your friendly neighborhood patent troll. Beautiful image courtesy of WIPO illustrator, Bob MacNeil

A post from our student blogger Roberto

Staying up to date on intellectual property news is tough.  In a field centered on the advancement of technology it’s no surprise that there are things always going on.  Doing a quick search on Google for “Intellectual Property” returned more than 15,500,000 results in the “news” category alone.  Lately, one of the most trendy and talked about topics is “patent trolls”, which are also known as “non-practicing entities” (NPEs) because of their tendency to never actually produce a product covered by the patent, and “patent assertion entities” (PAEs).  The term “troll” is pretty descriptive and, even without any further understanding of the concept, one immediately conjures up a negative image in their head.  For instance, some may imagine a mammoth forest green creature with warts the size of golf balls covering them from head to toe whom is wielding a massive sand barbaric wooden club.  Taken in a patent law context, that creature with warts is often a corporation swinging around the weight of its potentially damaging patent portfolio.  In many instances, patent trolls are corporations that acquire and own patents simply for the purpose of chasing down potential “infringers” and doing all they can to get the most money possible out of them.  At first, many of these trolls send the infringing entity a letter asking for a reasonable royalty to continue doing whatever it is the troll believes is infringing their patent.  Now, either the “infringing” company gives in to the troll’s demands or they do nothing and wait for the troll to potentially file a lawsuit against them.  Often times after not getting their royalty, the trolls file lawsuits which, in the end, cost companies on average around $2M.  While some large corporations can easily absorb that cost many small startups cannot and are permanently crippled as a result.

While patent trolls have existed for a long time, by some accounts since the turn of the 20th century, there has been a recent push to reform current laws to combat patent trolls.  On March 18, 2015, there was a Senate Judiciary Committee hearing on patent reform titled The Impact of Abusive Patent Litigation Practices on the American Economy.  At this hearing a large amount of focus was placed on finding ways to eliminate trolls from existence.  The troll destroyers, as I have termed them, argue that patent trolls have cost American businesses a lot of money.  Further, many fear that patent trolls could attack vulnerable small startups and force them out of business when they don’t have the funds to enter into a lawsuit or pay the royalties demanded by the trolls.  It is no surprise that over the past four years ten bills that attempt to combat patent trolls have appeared before Congress without any of them getting through.  These bills have not only met a tough audience, much of congress is not particularly well versed in patent law or related issues, but also has met a battalion of resilient and powerful patent troll lobbyists.  Many of these past reforms focused on increasing the penalties on trolls for losing patent infringement lawsuits and the same plan of attack is still being pursued by some Senators today.

Given all of the hatred on the patent trolls, by people like the troll destroyers, it makes sense to ask yourself how anyone could possibly be in favor of patent trolls.  Well take a journey with me as I transform you into just that, a patent troll abolitionist and war chief.  Imagine yourself coming up with a great idea for a brand new windshield for your car.  This windshield is amazing, it’s hydrophobic causing rain and water bead up and roll off it, it’s internally heated by invisible resistance heating elements that melt snow on contact and prevent ice from forming on it, it has an integrated and invisible photovoltaic cell array that charges the car’s battery, and it attaches to the cars computer to regulate the temperature of the glass so that it never gets fogged up.  After developing the product and working with your friendly neighborhood patent agent you are granted a patent on your awesome new windshield.  You call all your family members and friends and ask them to pitch in money to help you get a company started.  After investing all that time and money you finally get your first sale.  Sales over the next few months are slow, and you decide to approach Ford about licensing the windshield from you for use in future vehicles.  Much to your surprise, it is almost impossible to figure out who to talk to and how to get them to listen.  After pitching your idea to several “VPs” they tell you that they aren’t interested and send you on your way.  Discouraged, you decide to continue to try and sell it on your own, figuring that your awesome product would catch on and people would buy them once they saw how great they are.  One weekend you are sitting at home watching the commercials during the Packers game when you see it.  A commercial for the brand new Ford Raptor, a truck that has a never-before-seen windshield that has all the same features as your prized creation.  You are in an utter state of shock.  You run to the computer and do a quick online search.  You immediately notice that the windshield is identical to yours and it is getting all kinds of publicity causing orders for the new truck to go through the roof.

This is almost identical (minus the awesome windshield idea I came up with) to the stories of many inventors, including a U.S. veteran named Fred Sawyer, whose amazing story can be read here.

What do you do?  You could try to bring legal action, but that takes funding you simply don’t have. You would need to have the funding to compete with a mega-corporation that plans to simply out spend you.  What is most likely to happen is that you lose out and go out of business.  Today, inventors can turn to patent trolls to team up and go after that big corporation using the funding the patent trolls have.  Without someone like the patent trolls the small inventors would have no chance at competing in arena where the price of entry is north of $2M.   Without trolls there would be no way to practically enforce patent rights because of these financial realities.  Still, inventors pay a heavy price for partnering with the trolls, often forfeiting 95% of their patents value after winning a patent infringement case.  Even if the inventors decide to go to battle alone the act of waging war on an all-powerful corporation often earns them the title of “patent troll” as well.

So, now that you have seen both sides of the coin, what are we to make of patent trolls as a whole?  I believe the term “patent troll” is misleading and that the trolls are actually divided into two camps.  One camp that wants to pillage every possible piece of intellectual property and make as much money as possible through downright exploitation of the system, these are the trolls that (almost) everyone agrees we need to address in some way.  The other is the camp of trolls that exist to provide balance and security for the small inventors against the big corporations that they otherwise would have no chance against (included in this camp are the single inventor “trolls” going at it on their own).  Any potential patent reform needs to be wary of these two distinct camps and the effects any legislation would have on this precarious balance of power.  Take away too much of the troll’s power and with it goes the security of the single inventor.  Figuring out an answer that protects inventors while combating wasteful litigation will be difficult but is necessary to preserve the integrity of our patent system.

The MSPL takes on DC

A post from our student blogger Catie

MSPL students pose for a picture in front of the White House before going in for a tour

MSPL students pose for a picture in front of the White House before going in for a tour

To continue our whirlwind of a spring semester, a small group of MSPL students spent our spring break in D.C., exactly one month after our excursion to San Francisco. I know that it’s hard to believe that a trip anywhere could live up to a visit to sunny California, but D.C. was absolutely amazing! We were lucky enough to experience beautiful weather in the nation’s capital, as we mostly took the metro and traveled on foot to explore the area. The experience was four days packed with law firm and professional visits, informative and fun site seeing, and sampling of some of the area’s unique restaurants!

Similar to our agenda in California, we had the opportunity to visit a few law firms and D.C. area organizations that each houses at least a small cohort of IP professionals. With each visit, the MSPL’ers held candid conversations with these patent agents and attorneys to gain a solid understanding of what a career in patent law is like. We definitely learned something new at each location, and it was really awesome to be exposed to so many new concepts of intellectual property in such a short amount of time!

It was also fascinating to observe the personality dynamics of each firm or organization. A point that has frequently been reiterated to the MSPL is that as we begin our job search, it is important that we are not only determining where we would like to work, but also in what kind of environment we would like to work. It has been described that interviewing for a job is much like dating: it is critical to assess whether or not you like the given set of employers and would enjoy working with them just as much as they are assessing you in the same way. With such a small group of MSPL students, we also had the opportunity to speak with the IP professionals more casually and talk more about ourselves and our backstories. We made really great connections, and this helped to break down the serious and stiff demeanor that the East Coast was made out to have (prior to the trip, of course). This enhanced our experience all the more, to the point where the MSPL’ers had a really difficult time pinpointing our favorite visit by the end of the trip!

We also took the time to do some site-seeing. On the first day, we visited the USPTO and saw an examiner’s office up close as well as visited the patent drop-off window! Between professional visits on the first day, we stopped by the National Archives, where we saw the Magna Carta, the U.S. Constitution (including the clause of Article One that authorizes patent law!), and a few of the earliest granted U.S. patents. The next day, we had the privilege of touring the White House, the Capitol Building, and the Supreme Court, where we had the exciting opportunity to actually go inside the courtroom! On one stormy, foggy night, we took the opportunity to make the trek around the Lincoln Memorial, the National World War II Memorial, the Washington Monument, and then circled back around to walk past the White House before heading back to the hotel. On top of the magnificent site-seeing that we did, we also ate at some fantastic D.C. eateries, where we dined on specialty pizza and fresh seafood, and even had the experience of eating at the Old Ebbitt Grill!

My description of the trip is clearly incomplete without mentioning the wonderful family-bonding that we had on the trip! Although we only had a small sub-set of the MSPL in attendance, we still had tons of fun spending time together and exploring the area. From terrible direction-giving to cramming inside of taxis together, we had a great time and many laughs along the way. We even topped off our trip by passing the time on the drive home with an in-depth exploration of music and sharing of all of our favorite genres! If it isn’t already obvious, it was a truly fantastic trip. It was a spring break well spent, and I am incredibly happy that I made the decision to go!

The intellectual property story of Legos

Figure 1:  Comparison of Mega Bloks (Top) and Legos (Bottom). (Courtesy of Wikipedia)

Figure 1: Comparison of Mega Bloks (Top) and Legos (Bottom). (Courtesy of Wikipedia)

A post from our student blogger Roberto

As a kid, I could usually be found playing ball in the yard with my brother until the sun went down.  When we were forced to be inside, either by the lack of sunlight or good weather, my brother and I would always find something fun to do.  Many times I would find myself with screwdriver and hammer in hand, plotting how to take something apart in order to figure out how it worked.  As you may be able to guess, this led to the absolute destruction of many valuable items, including a watch which was my mother’s wedding gift to my father.  Shockingly, my parents were in desperate need of a new way for me to get my early engineering fix and began investing in Legos.  Like any aspiring engineer, I spent days on end constructing the coolest hydrogen-powered intergalactic star destroyers and subterranean exploratory vehicles.  Pretty soon I was bringing my creations to family gatherings showing them off like blue ribbon cattle at the state fair.  Before long my amazing family contributed to the cause by routinely giving me Legos on birthdays and at Christmases.  I remember one year getting a set of Mega Bloks and initially not even realizing the difference.  For those who do not know, Mega Bloks are a direct competitor to Lego’s interlocking brick platform and often times can even be used interchangeably with Legos.  After using these new Mega Bloks with my old Legos I soon realized the truth; the Mega Bloks were simply not as nice as the Legos I had come to know and love.  These Mega Bloks looked and worked like Legos but were not made to the same quality.  Rather than precisely locking together like Legos, Mega Bloks were flimsy and never really fit well together often leading to weak structures that fell apart.  In contrast, my Lego creations were so rigid that they needed to be pried apart and often doubled as formidable defense measures against an unexpected onslaught by my brother.

So why am I spending all this time talking about Legos?  Well, while reminiscing about my childhood over our recent spring break I remembered my love for the little plastic blocks.  After I thought about them for a while I asked myself two things.  First, where the heck were they, I needed to find them and relive all these awesome memories.  And second, I wondered what kind of crazy intellectual property issues Legos ran into.  After doing some research I found out that the Danish company started selling toys in 1932 and introduced the first of their famous bricks in 1958.  As you may be able to guess, many of Lego’s patents have since expired with the last major one expiring in 1978.

Mega Bloks first entered direct competition with Legos in 1991 and has been involved in about a dozen lawsuits with Lego since then, many of which are still active.  The natural question now is, how did Mega Bloks’ activity after Lego’s patent expirations result in a lawsuit?  Well, after running out of patent protection Lego’s savvy legal team turned to copyright and trademark protection.  In particular, Lego has tried to protect the visual appearance of its standard brick with eight studs through trademark protection.  In 2005, Lego sued Mega Bloks for trademark violation in Canada and lost and after that, Lego brought a similar suit against Mega Bloks in Europe and lost again.  As it stands right now, Lego is currently grasping at straws to protect its intellectual property and facing the possibility of little real protection.

Figure 2:  Image of "Lego Friends" Comparison (Courtesy of Cato).

Figure 2: Image of “Lego Friends” Comparison (Courtesy of Cato).

While many of the cases surrounding Lego’s trademark of a block with studs have been settled Lego is now going after competitors for making products similar to their new “Lego Friends” products.  Lego has recently filed a complaint to the U.S. International Trade Commission (ITC) against several companies to bar importation of several products similar to their “Lego Friends” products on the basis of copyright infringement.  The ITC’s intellectual property powers originate from their responsibility to protect domestic industries from “unfair competition”.  The key issue here is that Lego is a Danish company which manufactures its products in Europe and Mexico.  This may disqualify them from standing as a “domestic industry” and therefore they may not subject to the ITC’s protection.

What presents an even more interesting situation for Lego is the advent of 3D-printing technology.  As you may know, 3D-printers are becoming less expensive and are beginning to offer more capabilities.  In the coming years as 3D-printers become common place it will be impossible for Lego to prevent others from printing their own bricks.  In fact, a professor at Carnegie Mellon University recently created an online library of pieces which can be printed by anyone with a 3D-printer.  It is not out of the realm of possibility that 3D printers will dramatically impact sales of products like Legos which are largely uniform and easy to print.  As the cost of 3D-printers and supplies continue to decrease, at what point will Legos become simply too costly?  These issues are surely being considered by the company and it will be exciting to see how they adapt.  Before long Legos may no longer be bought at the store, but downloaded online and printed at your desk.

Getting down to business

Enlightened Diagnostics™ (EnDx™) from left to right: Gaylene Anderson, advisor; Colin O’Toole, MA ’15; Scott Manwaring, MBA ’15; Chris Cali, MS ’15; Megan Usovsky, MS ’15; and Victoria Zellmer, PhD ’17

Enlightened Diagnostics™ (EnDx™) from left to right: Gaylene Anderson, advisor; Colin O’Toole, MA ’15; Scott Manwaring, MBA ’15; Chris Cali, MS ’15; Megan Usovsky, MS ’15; and Victoria Zellmer, PhD ’17

A post from our student blogger Megan

When we think about patents we normally don’t think about business. In reality, patents go hand-in-hand with business. Why do people seek patent protection in the first place? Ultimately, patents place a monopoly on a device, machine, manufacture, or method, and insure that others do not make or use the patented item for a specified period of time. Patenting, as you can see, means the difference between having the ability to create a business based around specified items or not.

At Notre Dame I have had the distinct honor of being part of a business team that competes at competitions around the country. This experience has been incredible to say the least. My capstone project for the MSPL has been intricately woven into a business venture. For the past eight months, Chris Cali, ESTEEM masters 2015 candidate; Victoria Zellmer, PhD in biochemistry 2017 candidate; Scott Manwaring, MBA 2015 candidate; Colin O’Toole, Masters of Accounting 2015 candidate, and myself, have met outside school hours to craft a business plan and presentation to sell our inventors’ technology to potential investors. The five of us have learned that building a business from scratch takes a lot of time and effort: sweat equity needs to be poured into creating a business formula that will work, as well as a healthy dose of personal time and attention.

When we first met on a balmy sunny day in August, our business team was all smiles; we had no idea the commitment we were about to engage. With the help of our steadfast business team advisor, Gaylene Anderson, we started to meet at least once every week. The process was slow at first but as we started to decipher the makeup of our technology and how it worked, we were able to begin drafting a rough copy of our business plan over first semester break. The original plan was the culmination of each team member’s contribution: our technology entrepreneur drafted the majority of the business plan, our biochemist added her expertise on the science, our engineer/MBA added his knowledge of the technology as applied to business, the accountant added his numbers throughout spreadsheets, and I added sections devoted to our intellectual property. We entered several competitions ranging from the McCloskey business plan competition here at Notre Dame, to national competitions in Texas and California.

Our first competition took place at the University of Louisville in Kentucky at the Cardinal Challenge on Valentine’s Day. We didn’t know what to expect but we looked dapper in our company color—royal blue—which also paid deference to the University of Notre Dame. With some nerves and a little trepidation, we made it through a fifteen minute presentation. There were four judges that provided feedback after we presented. Some of the feedback was harsh—since we didn’t know what to expect we were thrown off by some of the criticism. We left the first round with some worry that we would not make the final round; however, we also left with a huge sense of accomplishment.

The top four teams were announced during lunch and we were called last. We made it, though! All the hard work had gotten us to at least a spot in the top four. We practiced for another couple hours and then it was show time again. We pitched our idea to a second set of tough judges as well as a larger audience.

I can still remember the feeling I had when the third and fourth runner-ups were announced: complete and utter happiness! Our company name was called for second-place. This was a respectable showing, but the entire team agreed that we were hooked on the spirit of the competition, our technology, and eventually, we set our minds to win it all going forward to other competitions.

Business is integrally tied to patents, and quite possibly to everything we do in life. As the old saying goes, “nothing in life is free.” This means you can capitalize on almost everything out there. But business is more than just making money. It is about selling something that is going to help someone. Our technology is an imaging platform that enhances cancer diagnostics. And I get to be part of this—simply amazing. Now, let’s get down to business, and I’ll update you on our progress as we compete for first place at further business competitions.

Trademark tactics

The WalletHub logo is being opposed by Major League Baseball on behalf of the Washington Nationals and Chicago Cubs. (Courtesy of Evolution Finance) (All Courtesy of Washington Post)

The WalletHub logo is being opposed by Major League Baseball on behalf of the Washington Nationals and Chicago Cubs. (Courtesy of Evolution Finance) (All Courtesy of Washington Post)

A post from our student blogger Roberto

When many hear the words “intellectual property” they think only of patents.  In fact, there are many other forms of protection that are available depending on the subject matter.  For example, a trademark can be filed to protect any word, name, symbol, or design, or any combination of the proceeding, to be used in commerce.  This identifies and distinguishes the goods of one from the goods of another and serves as indication of the source of goods.  Not surprisingly, most of the work of patent agents relates to patents.  However, it is important to understand the other types of protect that exists and how they may fit in with your client’s needs.

For me, it has always been easiest to learn through examples.  Better still, it is more fun to learn through examples that peak my interest.  As you will likely find out in the coming months (through subsequent posts) I am an avid baseball fan and even play on a team back in Milwaukee.  With spring training starting just a few days ago, and a torturous ending to the Packers’ season, I admittedly have a bad case of baseball fever.  Out of the blue, I decided to do an online search for “baseball intellectual property”.  Oddly enough, there were a few news outlets covering a trademark dispute between the Chicago Cubs (Booooo!!), the Washington Nationals, and a small Washington D.C. startup called Evolution Finance.  Evolution Finance uses the trademark to represent WalletHub, a Web site they run where consumers can compare credit cards and find personal finance advice.  The dispute is over Evolution’s application for a trademark, the white W on the green background, which Major League Baseball (MLB) is opposing because of the trademarks owned by their clubs, the Cubs and Nationals.  While I have watched baseball my entire life, well since I can remember, I have watched baseball.  One of my first memories was hitting baseballs off a tee in my backyard and I can’t tell you how many summer hours I have put in on the diamond.  Even with my knowledge of baseball, I had absolutely no idea what the Cubs’ trademark was from.  While I had never seen the Washington trademark because it was from their early Senators years (1912-1927), I was shocked to hear that the Cubs trademark had been used at least 38 times each season since the 1940’s.  In fact, the Cubs trademark is actually depicted on a flag that is hoisted at their home stadium, Wrigley Field, after each home victory.  After learning this, it made sense to me why I had not seen the flag before.

MLB is arguing that consumers may be confused by the Evolution Finance trademark and mistakenly associate it with baseball or believe that it is endorsed or partnered with MLB.  Conversely, Evolution Finance is arguing that their uses are substantially different than those of MLB and that the uber-powerful baseball conglomerate is attempting to hijack the letter W and all its potential uses.  Currently the two sides are awaiting a trial before the Trademark Trial and Appeals Board which will decide the fate of Evolution Finance’s trademark.

In a follow up to my last post, it looks like football player has followed in Marshawn Lynch’s footsteps and filed their own trademark application.  Jameis Winston, the highly touted and potential first overall selection in this year’s draft, has filed a trademark application on his nickname “Famous Jameis”.  In addition to the contract he will sign, last year’s number one pick Jadeveon Clowney signed for $23M guaranteed, Winston will look to cash in on branding much like Lynch aims to do.  The trend of sports players seeking trademark protection for nicknames or catch phrases definitely seems to be heating up.  In recent years Johnny Manziel, Roberto Griffin III, Jared Allen, Darrelle Revis and former players John Elway, Bart Scott, Michael Strahan, and Terrell Owens all have filed trademarks.  Given the cash cow that sports marketing is, it is not surprising that athletes are looking to capitalize.

California dreamin’

The Notre Dame Patent Law family at Half Moon Bay

The Notre Dame Patent Law family at Half Moon Bay

A post from our student blogger Megan

“California Love,” “California Dreamin,’” “California Girls,” “Like a California King,” and “Californ-I-Ay.” These are just a few of the dozens of songs that have been written about the thirty-first state admitted to the union. With so many songs written about it, there must be something special about California, and in fact, there is. Sure, there’s the beautiful topography, the pristine beaches, and the endless drops of sun all year round, but what else? The MSPL received an invitation from Notre Dame’s William K. Warren Foundation Dean of the College of Science, Gregory P. Crawford, to visit Silicon Valley for a full week to find out what really makes California unique. We learned that the Golden State is more than just a pretty place—it’s all about hard work, passion for what you do, and an effortless vibe of excitement.

Dean Crawford is relocating to California to launch a strong Notre Dame presence on the West Coast. After all, California boasts the second highest number of Notre Dame Alumni in the entire United States. But in addition to this fact, Notre Dame has solidly established itself as a competitive science, technology, and business university—three qualities that fit like a glove with NorCal’s high-tech atmosphere (think Google, Facebook, and a whole host of start-ups that have hit the area like a spontaneous meteor shower within the past decade and a half). Dean Crawford serves as a charismatic ambassador between the halls of gold and blue in Indiana and the glistening sunshine soaked techie industry in San Francisco. During a brief November, 2014 meeting with the MSPL, Dean Crawford shared his plans for the ND-CA alliance. A casual comment was thrown out suggesting that Dean Crawford host the class in California during the second semester of the program. Dean Crawford immediately jumped on board. Ten weeks later we boarded a plane and watched the frigid snow of South Bend disappear, touching down a few hours later in beautiful San Francisco on a warm Sunday afternoon.

The MSPL cohort visited multiple private law firms including Morrison Foerster, and companies such as Qualcomm and eBay. MSPL’ers also got to spend time with Notre Dame alums that are now living and working in NorCal. Tim Connors informally lectured to the group on the basics of venture capitalism and John McNelis discussed the life of a patent attorney. The week-long Cali trip included some fun events like a visit to Half Moon Bay and some of the best ice cream sandwiches we’d ever tasted in the Valley.

The California trip was fun, but perhaps the most surprising thing about Silicon Valley was the immediate rush of intoxicating intellectual satisfaction that the people of NorCal emanated. Everyone that we were introduced to from IP lawyers to tech-savvy engineers loved what they did, loved where they lived, and exuded an air of confidence and happiness. Silicon Valley, you see, is the land of the start-up. Some new businesses rise up and some don’t make it off the ground. But regardless of whether your venture makes it in this area, at least you tried. And you don’t stop there. You keep going until you do succeed.

I once had an undergrad geography professor who hailed from California and he told us time and time again, “everything you hear about California is true.” He was right. California is one of those rare places that not only looks beautiful on its surface, but is truly filled with inspiring people who have big dreams. It might sound cliché, but the exposure to such a unique area of the country has changed the way that I think. If you have an idea, chase it. If you succeed, great; if you fail, try again. But whatever you do, have the courage to do it, not just dream about it.

Any questions?

A post from our student blogger Catie

If I have learned anything from the MSPL, that lesson would be to always ask questions. Whether we’re in class, speaking to an inventor, or listening to a presentation from a guest speaker, we are individually expected to have at least one question to ask. It may on a surface level seem irritating or may feel like you’re only doing it for the participation points, but it really does serve good purpose. Asking questions shows your professor, inventor, or guest that you are attentively listening to what he or she is saying. It shows that you are invested and interested in the overall message of their speech and would like to know more. A question can enhance the knowledge gained by the audience or may clarify a foggy understanding of part of the content that perhaps other people were wondering as well.

Those are all good purposes for any individual to frequently ask questions, but those of us in patent law know that we have to become pros at mastering it like an art form. For a patent agent, asking questions is not just courtesy; it is our job. In order to do his or her job effectively, a patent agent must ask the right questions of inventors in order to fully understand the invention in all aspects. This is way more difficult than it sounds, as we are pushed to not only ask all the right guiding questions, but we are encouraged to avoid “yes” or “no” questions in order to elicit the most honest and complete responses. Also, regarding interactions with both inventors and the USPTO, patent agents should always pose questions so that they may refrain from accepting everything at face value. Part of the job of a patent agent is to argue, so learning to constantly have questions provides great training for the career.

To some, this may seem like an easy task. However, the MSPL has made me push myself to break out of my own mold. I have always been the kind of person to never ask questions, unless I REALLY had a burning question. I’m a “head nodder”, so I figured that my body language and silence were signs to the person speaking that I understood what was going on. It was somewhat of an annoyance to me to be so strongly encouraged to speak more, and it still takes a lot for me to compose thoughtful, genuine questions to ask on such a frequent basis. That being said, I think that I’ve learned from it, and I am seeing changes in myself. I think it was most obvious to me while I was at mass in Notre Dame’s beautiful Basilica for Ash Wednesday service, and I had to stop myself from raising my hand to ask a question during the homily! Clearly, the habit of asking questions is slowly becoming instilled in me as a subconscious act.

To conclude, the students of the MSPL are learning an incredibly important skill of persistently asking questions, but are also training to master what questions to ask and when to ask them. I am seeing myself develop these skills, and I am subsequently gaining an understanding of how these skills will make me a better patent professional when I am working in the field!

Decoding the matrix

A post from our student blogger Roberto

As an undergraduate I remember waking up one morning and everything changed.  Before that day I remember straining my brain each second trying to memorize every piece of information my teachers went over in class.  When the time came to prepare for the test I would work through the notes and redo all the practice problems hoping to just re-learn all those examples from class.  Then exam day would come and the questions would be different. As a result, I would be forced to exercise my creative knowledge on test day.  As if those tests weren’t hard enough I would later learn that this method of studying made them far more difficult than they had to be.

As I said, there was a day when this all changed.  Maybe it was a result of staying up all night in computer lab trying to figure out which sign change I needed to make in order for my code to work but one morning I woke up and everything was different.  It was almost a matrix-like moment, for all of my Keanu Reeves fans out there.  Rather than furiously copying down everything I saw on the chalk board I was found myself taking very few notes.  I had finally connected the dots, I had begun to piece the concepts together.  I actually began to look at problems and see the numbers and underlying concepts behind what was going on.  I would take pieces from my other classes and use them to predict what the teacher would say next.  Before long I had unlocked a whole new level of learning and understanding.

When I was going through bootcamp here in the MSPL I realized that I had to become a student of something entirely different than the engineering coursework I was used too.  My reset button had been pressed and back again were the days of tirelessly scribbling notes I would probably never make sense of.  Initially, it was a bit of transition for me going from engineering to law.  I was not used to analyzing words so carefully nor was I accustomed to memorizing statutes and laws.  While I knew all of our classes had been carefully interwoven together it was hard for me to see the common thread at first.  Each time our professors lectured or we listened to guest speakers I was amazed at the level of knowledge they possessed of the law.  They spoke about the law so fluently and eloquently it was as if I was in a foreign country.

After a while the hard work in the classes started to pay off.  I began to put the pieces together and I started to truly understand, rather than memorize, concepts.  While I was studying for the patent bar I began to realize the true intent of the system and that answers to questions would always flow from that understanding.  It was a really great to feel like I understood what patent law was about and what the goal of it was.  The closest comparison I can make is that when you were young your parents instilled in you a sense of right and wrong, a moral compass.  At first, it was difficult to differentiate right from wrong and we would often pay for the price for it.  After a while though we began to trust our moral compass and simply ask ourselves what would be the right thing to do.  Rather than memorizing rules we relied upon our understanding of much larger concepts.

For my news tidbit of the week I (regrettably) once again turn our attention to the Seattle Seahawks and their running back Marshawn Lynch.  As many who follow the NFL know, star NFL players are required to be available for public media interviews after games or at league scheduled events.  Many stars, including Aaron Rodgers, Jordy Nelson, Eddie Lacy and Randall Cobb, rarely make headlines for these interviews.  Some players however have utilized the venue to air grievances with coaches, opposing players or teammates.  Lynch made headlines this season not for what he said, but what he did not say.  After refusing to answer questions from the media during the majority of the season, and being subsequently fined by the NFL, Lynch decided to answer all media questions with the simple word “yeah”.    The next week Lynch answered all questions with “Nope” and over the next few weeks all questions were answered with “Thank you for asking”, “I appreciate it” or “I’m thankful”.  Many wondered what Lynch would say during “media week”, which is the week before the Superbowl.  Rather than answering questions with one of his already coined responses or not answering at all, this time Lynch responded to every single question with a variant of “I’m just here so I won’t get fined”.  Now, a few weeks after that now famous interview, Lynch is attempting to file a U.S. trademark on the phrase.  Presumably, Lynch intends on reproducing his famous line on his own personal brand of clothing.  As you may know, this trademark would allow him to stop others from reproducing that phrase. While Lynch’s series of interviews will go down in sports lore it is awesome to see intellectual property coming into play and I am excited to see what he does with the phrase.

A nation of innovation

A post from our student blogger Roberto

This past week members of the program went to California to meet companies and law firms involved with intellectual property.  On the plane ride over it hit me just how cool this trip really was.  I mean, we were going to the epicenter of the technology scene in the United States.  What’s more, we actually would get to see how some of the companies and firms worked.  Wow.  That is truly an amazing opportunity.  As the son of an entrepreneur it was really cool getting to visit the area where so many companies were founded.  And what was at the core of many of these companies? Tons and tons of crucially important intellectual property.  Without intellectual property many of these startups would have been swallowed up by a competitor with more resources smothering innovation. Thankfully, patents protect the blood, sweat, and tears these inventors and entrepreneurs have poured into their efforts.  As these inventors know too well, the patent system truly is remarkable.  It arms David against Goliath and allows for the little guys to sometimes come out on top.  This shakes up the game and constantly brings new ideas to the table by facilitating competition and eliminating monopolies.

On our trip, many of the firms we went to have represented some very prestigious clients such as Facebook, Oracle, Uber, and Twitter. Each firm was unique in both its operating style and its employee culture giving us insight into many different environments.  We also had the opportunity to speak with in-house counsel at Qualcomm, eBay, Intuitive Surgical and Stryker.  We even had the unique opportunity of touring the Qualcomm facilities as well as participating in a live demonstration of the DaVinci robot.

One of the things that stood out to me throughout all of our visits was just how different the atmosphere in Silicon Valley was compared to anything I had ever seen.  From the corner street cafés to the corporate headquarters of the most successful companies, there was a real entrepreneurial spirit that permeated the entire region. Everyone we met was talking about startups, innovation and the next best thing. Being from the Midwest, this was strikingly different from what I was used to. Where I come from people pride themselves on hard work and the fruits of their labor in a very different way.  Rather than focusing on radical changes like those in the Valley, I was used to incremental changes in historically successful products.  The differences in mentalities may seem minor but it was, in fact, a very striking difference.   After thinking about this for a while on the ride home, I realized it just gives me another reason to be proud to have chosen to work in the Midwest as a patent agent. In some small way I will be helping to change not only the world but my home as well.  While all of my classmates can say that, I am excited to be a difference maker in a region that needs them.  While many young patent agents are understandably attracted to the flurry activity going on in the Valley I knew it just wasn’t for me.  By staying in the Midwest maybe I could help bring some of that spirit and energy back home.  Who knows, maybe I could help start the next Valley.  In the end, we all need to decide what is most important to us as we start our careers.  Working as a patent agent has many rewards and thankfully there are many jobs and career paths to choose from. For me, going home and working hard to make it an even better place is what is most important to me.

Legalese, please

A post from our student blogger Megan

For the last several weeks during class it has been brought to my attention that lawyers speak their own language.  At some point, halfway through law school, I became submerged into what a layperson would call “legalese.” Sidepoint:  I never knew what a “layperson” (someone who is not a member of a given profession, such as law or medicine) was until law school.  Res ipsa loquitur, injunction, arbitration, certiorari, intestate, sanction, estoppel, and venue are just a few of the words that lawyers tend to use without much thought.  Patent law is even more specialized. The word “patent” itself is derived from Latin and literally means open, evident or exposed. I am guilty of throwing these words into things I write and, worst of all, things I say on an everyday basis. I have peppered more than one phrase with a “summons and complaint” and added a generous helping of “damages” to other conversations without thinking whether my readers and listeners even know what I’m talking about. But is this necessary?  Why don’t lawyers just write and speak simply without using legalese?

We have to consider the origins of law in order to properly answer this question.  While we do not know exactly when laws were developed and where, there is evidence of legal doctrines popping up around China in approximately 2500 B.C. during the rule of Baron Yu. Apparently, Yu drew a line on some sort of grid and criminals were deported to one side while everyone else lived on the other.  Fast forward to 399 B.C. to when a vote by 501 people sentenced a well-known philosopher to death: the trial of Socrates. And most everyone knows that each continent, country, province and state creates, implements, and punishes under its own laws. The notion of specific language that denotes the use of legal terms is likely as old as law itself.  As society continued to develop, new laws were created which in turn became more and more complex, reflecting the advancement of civilization. During the 1600’s it was a known fact that attorneys had to speak French, Latin, and English. Most places have their own words and meanings ascribed to their legal systems—this is likely where much of our legalese stems from.

So is there any problem with throwing a few legalese terms like “shall” and “heretowith” into writing and speaking as a way to honor our long legal heritage?  Well, no, unless you are one of the thousands of plain English proponents out there.  I recently joined the Plain Language Advocates forum on LinkedIn. There are a lot of interesting posts on this site including one article that talks about how using big words reduces credibility.  One person in the group also suggested a “death row” for words that are no longer a part of common usage. There is another side to this argument, though. Contracts and License Agreements are packed with heavy legalese. Any corporate law attorney will tell you that the End User License Agreement on that new program you just installed is set up to protect “somebody.”  That “somebody” is the person or company that developed the software. Legal language in this case can be a powerful warning to would-be copiers and people who intend to misuse.

To sum it all up, language is a living, breathing, evolving creature. Legalese, if it still exists, will likely look radically different 100 years from now. So go ahead, throw some bailment or some bylaws into your word soup when you are writing and talking. Just be prepared to flat out explain why you are using them in the first place and get ready to define these terms to your audience