August 22, 2024 • 55 mins
In this episode of Two IPs in a Pod, hosts Lee and Gwilym sit down with David Kappos, former Director of the USPTO and a key figure in IP law. They dive into his fascinating career, from his work at IBM to his time in the Obama administration, exploring pivotal moments and key insights. The conversation also touches on the future of IP law in the US, the challenges ahead, and some stories about the most famous people they’ve all met along the way.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
Hey, gwilym, you know you're not a great James Bond
fan, are you?
Speaker 2 (00:04):
I know a little James Bond more.
Speaker 1 (00:07):
Have you watched Never Say Never, whatever it is
Something like that, isn't it?
Speaker 2 (00:12):
Never Say, never Again.
Never Say, never Again.
Remake unlicensed remake ofThunderball.
Speaker 1 (00:17):
Yeah.
So the podcast gets a bit likethat, doesn't it?
Because we said on the lastpodcast that that would be our
last one for the season, andthen we get a big hitter come
along and we think, no, we'vegot to get one more in this
season.
Speaker 2 (00:30):
We have, I think, three times now said this is the
last one in the series, this isthe last one in the series and
we are ending on a high, ofcourse, which we're going to
come to.
Yeah, so that's actually a bitof interesting James Bond
knowledge.
By the way, never Say NeverAgain.
Sean Connery was a remake ofThunderball, because they had a
bit of a.
Ian Fleming had an issue withthe film rights versus the book
(00:50):
rights and the film was a bitodd and it wasn't very well
scripted.
So they actually brought DickClements and Ian Lafrenan.
Speaker 1 (01:02):
Oh, that's Army.
Speaker 2 (01:03):
No Porridge, porridge .
Oh, they're the um, that's army, no porridge.
So so they actually reuse ajoke from a ronnie barker joke
from.
Speaker 1 (01:10):
Porridge is reused in never say never again so we
know our guest is on thispodcast and poor davis sat there
thinking what on earth are theytalking about?
Speaker 2 (01:18):
yeah, well, it's a very obscure british but
brilliant british comedy.
But the writers?
There's a scene in never saynever again where um sean
connery has to go and visit adoctor and the doctor says I
need you to fill this sample andsean connery says what from
here?
And that's actually a joke fromporridge.
So there you go.
Fact of the day.
Speaker 1 (01:35):
So I do know my james bond oh yeah, I'm so glad I
said that.
I just wanted to get some kindof reference into never saying
never again about it being thelast one on the podcast.
I didn't, I didn't actuallyknow that you were a true james
bond buff, so um another timeand and only in the series, we
are doing more podcasts yes,it's just the last one of the
series for the summer, um, andthen we're gonna have a little
(01:57):
break for a few weeks, aren't we?
and then we'll start again in umin the autumn.
So shall we get our guest?
Would that be a good place togo next?
Speaker 2 (02:15):
Lee Davis and Gwilym Roberts are the two IPs in the
pod and you are listening to apodcast on intellectual property
brought to you by the CharteredInstitute of Patent.
Speaker 1 (02:22):
Attorney.
So really excited, gwilym,aren't we?
We've been looking forward tothis one for a long time.
We have Dave Kapos with us,former head of the USPTO.
And, dave, I know your legendgoes before you, but do you want
to give yourself a littleintroduction?
Speaker 3 (02:37):
Yeah, surely.
And great to hear about theJames Bond lore.
That's, of course, a superfamous movie franchise that we
love over here in the US as well, and I enjoy watching those
films.
So now I'm going to have to goback Guilhem and rewatch Never
Say Never Again.
(02:57):
I think I was involved in thedeal here a few years ago where
the catalog that catalog wasincluded in the film assets.
If I'm remembering correctlythat it was one of our deals
here, super famous anyway.
So, yeah, great to join youguys, lee and Guilhem, and to be
(03:21):
with the CIPA folks Greatorganization.
As Guilhem knows, I've had somehistory with it.
Going back, I'm Dave Kapos, asLee said, former director of the
USPTO during the Obamaadministration.
Before that I was a chief IPlawyer at IBM, where we had and
IBM still has a nice operationthere in Hursley, where we had,
(03:46):
and IBM still has a niceoperation there in Hursley.
And since then I've been now 11, going on 12 years.
I've been a partner here atCravath in New York City.
As you can see, that isactually New York City behind me
on this Thursday morning in theheat of the summer, august 1st,
and it's a pleasure to join youI'd say it's really, it's
(04:08):
really great to have you on.
Speaker 1 (04:09):
Thank you so much for um for for joining us.
So where, where do you want tostart?
Have you got?
Have you got like a reallypressing question for?
Speaker 2 (04:18):
dave, I'm a big fan of starting at the beginning.
So, dave, obviously you cameout.
I think it's through ibm andprior to the us commissioner
role.
That's right, isn't it?
Yeah?
Yeah so just talking abouttalking through what you did
there and what you're up to,because I think you know that's,
that's a pretty impressivestuff.
Speaker 3 (04:34):
Yeah, I'm sorry I missed that.
William the um here at cravath.
Or what I'm doing you knowgenerally outside of the IBM
story.
Speaker 2 (04:44):
So what we were up to there.
Speaker 3 (04:46):
Oh yeah, well, you know at the time.
I mean, things have changed alot, of course, but IBM was
(05:07):
perennially the chief patentholder spend of several hundred
million dollars a year atseveral hundred people all
across the globe, and and thelicensing works.
I mean it's great.
You know, I obviously can'tspeak to IBM now, but I could
say when I worked there it wasabsolutely a great company.
I could have spent the rest ofmy career there had it not been
(05:28):
for, you know, the being askedto go and serve in the
administration and the one otherthing we should come back to
this.
You know IBM in those days wasmaking key innovations in what
we now know to be generative AI.
We didn't call it that then,you know, but when the IBM Deep
(05:52):
Blue computer beat the Jeopardychampion, that was a closed
generative AI system that did it.
So the company researched inthat area and I think still does
, for generations breakingbarriers and what we now are
(06:13):
seeing unfold before us, thatquantum computing comes to mind
as well, that we're starting tosee explode on the scene, and
maybe we'll get to talk aboutthat during the podcast.
Speaker 2 (06:23):
I actually read that Louis Gerstner was CEO there at
one point and he's written quitea good book about how he
handled IBM, because IBM raneverything in the 50s, 60s, 70s,
80s.
It had a bit of a jitter and hecame along and kind of worked
out where it should be and Ithink it's an amazing story yeah
(06:47):
, lou was.
Speaker 3 (06:48):
he was the ceo and my boss, um, when I sort of was
coming up through the ranks atibm and the book he wrote I
think was called um, makingelephants dance, something like
that, and I've read it.
It is a great book about a, youknow, a terrific, authentic
turnaround.
The company you know it'spublicized in the book, I think
(07:08):
was, you know, within weeks ofliterally not being able to make
payroll, literally running outof cash.
This is a company with a half amillion employees, right, and
Lou came in and, you know, inthe space of his tenure as CEO,
totally turned the place around.
And then Sam Palmisano, who wasmy boss when I was the chief IP
(07:31):
lawyer there and is still agood friend and collaborator I
now sit on the board of hisnonprofit, the Center for Global
Enterprise was, you know, again, a fantastic leader who had the
foresight and the courage tosee things coming like the
commoditization of PCs and harddrive storage and retail store
(07:57):
solutions, and so did theincreasing importance and
prevalence of services in the ITindustry.
And so it was Sam whoorchestrated really important
M&A deals that reshaped thecompany and enabled it to stay
(08:17):
very profitable for another 15,20 years.
Speaker 2 (08:22):
Actually, we'll move on from IBM in a sec, but having
read that book I'm way moreinterested than I was previously
.
It's a little long.
Actually, we'll move on fromIBM in a sec, but having read
that book I'm way moreinterested than I was previously
.
Lee, it's a brilliant book onstrategy actually.
It really is interesting whathe did and I'm a big science
fiction fan.
If you can read any sciencefiction book in the 60s about a
future dystopia, they alwaysfind a dusty computer or it's a
printer roll with IBM printed onit and you realize just how
(08:45):
absolutely prevalent it was inevery area of life.
At one point it's incrediblebecause they're a powerhouse now
as well, as you say, movinginto new areas yeah, remember
the um uh, space odyssey movie,right uh, but how was IBM?
Speaker 3 (09:02):
each letter shifted by one, right?
Yeah, I've heard that Love it.
Speaker 2 (09:11):
And then I mean just the history, because you've got
an interesting story.
As you say, you moved to thegovernment side.
Was that you reaching out orwas it you reached out to?
How did that happen?
Where did you move?
What were the moves?
Speaker 3 (09:26):
No, that was definitely all incoming.
I had no ambitions or reallyinterest in leaving.
I had the I thought you knowthe best job in the world chief
IP lawyer of the biggest IPholder, so I had no interest in
leaving.
I was called at the beginningof the Obama administration
(09:47):
because I was known, you know,as the chief IP lawyer spending
a lot of time in DC.
I've gotten to know, you knowimportant members of Congress
and staff, and so they called meat the beginning of the
administration and said you know, we think the USPTO is in
trouble and would you come andsee if you can help fix it?
Speaker 2 (10:10):
I mean, you were the talk of the town.
I remember it really well, andthen we'll see the turnaround.
I don't know if it was aturnaround, but the work you did
was amazing.
But was it?
Did you jump at it?
Did you jump at it?
Did you think maybe not?
What was your thought processwhen this came in at it?
Did you jump at it?
Did?
Speaker 3 (10:24):
you think, maybe not what.
How did you, what was yourthought process when this came
in?
Well, why so?
What I said was look, um, uh,let me go talk to my wife.
Uh, that was actually exactlywhat I said, because I wasn't
gonna, you know, even thinkabout something like that
without, uh, my wife, um, youknow, agreeing to to, you know,
because, right, the spouse isalong for the journey, as rough
(10:47):
as it can get, and my wife wasvery supportive and so, right, I
was able to then go forwardwith the job.
Speaker 2 (10:56):
And I mean Lee and I can have a fanboy moment here,
but I guess you met a couple ofpresidents over your time as a
result of that role.
Speaker 3 (11:05):
You've met a couple of presidents over your time as
a result of that role.
Yeah, I got to know PresidentObama fairly well.
There were some weeks I'mlooking at pictures of us up
here on my office some weekswhen I was spending so much time
at the White House.
It's very disruptive to gothere because you know you got
to go through security to get in.
It takes time.
You got to leave your devicesso I'd always bring hard copy
(11:30):
paper with me, so I havesomething to do.
Then you're perennially waitingfor your meeting with the
president and whatever or otheryou know members of the vice
president.
I did some work with Joe Biden,now President Biden, when he was
vice president.
He was very good in those daysand really could run a room of
CEOs.
That was what I was involvedwith him on some entertainment
(11:51):
industry work.
But yeah, so I got to spend afair amount of time with
President Obama, spent some timeagain with Joe Biden, then vice
president, even before thatwith President clinton, so I've
gotten to know a few of them, atleast in passing that's quite
cool, can?
Speaker 1 (12:10):
I can.
I just segue and do a littlekind of.
I know we don't do politics onthe podcast, but um so, um.
So tell me if I'm going downthe wrong street with this one
and we can always cut it out.
But dave, um.
So the the way, the way thesystem works in the states, with
the head of the uspto beinglargely a political appointment,
is obviously very different tothe way it works in the UK,
where we have a career civilservice and civil service is
(12:30):
very disconnected from partypolitics.
How, in your experience, howdoes the manner of the likes of
USPTO director appointmentsframe IP policy in the States of
USPTO director appointmentsframe IP policy in the States.
Speaker 3 (12:44):
Well, it is indeed a policy job here in the US and
it's what's called a past job,presidentially appointed, Senate
confirmed.
So it's one of about a thousandor so roles in the government
that require the appointment bythe president of the United
States and Senate confirmation.
(13:05):
So it's a political job.
You serve at the will and whimof the president.
You can be dismissed on anygiven day for any reason or no
reason, you know, by thepresident.
And the role is, you know it'sa kind of a two-hatted role.
One is to make the trains run,examine and issue patents and
(13:26):
trademarks, and then the otherhat manager budget of now.
You know at the time it wasaround $3 billion, Now it's
around $5 billion, I think maybefour and change and, but you
know, at the time was around10,000 employees, I think it may
be around 13,000 now.
That's one side.
And then the other side is thepolicy hat advising, as is in
(13:49):
the law, right, advising theSecretary of Commerce and the
President, through the Secretaryof Commerce, on intellectual
property policy issues, patent,trademark, trade secret,
copyright.
So in that role, you knowyou're constantly jousting and
jostling in the administration,you know, with other agency
(14:10):
heads and the White House, andyou know, OSTP, Office of
Science, Technology Policy, OMB,Office of Management and Budget
, on and on and on, in order toadvance intellectual
property-related policies.
Speaker 2 (14:28):
So just before we move on from that, I was going
to say, I mean, yeah, lee and Iwe've met a few presidents
ourselves, obviously, butstrictly speaking, presidents of
the Chartered Institute ofPatent Determinants.
Even so, some prettyhigh-powered players.
Speaker 1 (14:45):
Including, of course, roger Berto David DeWitt.
In fact, you very kindly cameto visit SEPA.
I think in the it was probablythe last few months of your
tenure at the USPTO when, backin the days when Roger was vice
president at SEPA, yes, yeah,and since I remember having a
meeting with the CIPA folks.
Speaker 2 (15:07):
So I think we live with the president.
No, they won't have me.
They won't have me.
I'd have him tomorrow.
Speaker 1 (15:14):
Dave, no, they won't have me.
They won't have me.
Speaker 2 (15:16):
I'd have him tomorrow , dave, but he won't have me.
Thank you, that's very kindlyso.
Yeah, lee, and I have obviouslymet a lot of presidents.
I was going to say this beforeI close, lee, but I'm not going
to because I don't think we'regoing to win.
So, dave, you've mentionedClinton, obama, biden.
Who's your?
Speaker 3 (15:33):
favorite president of those three?
No, that would be a.
It's like asking someone youknow which is your favorite of
your kids All three superamazing and can really run a
room.
The thing that's the mostamazing about these folks all of
them, I found is when you're ina room with them.
there could be a hundred otherpeople there and you feel like
you are the most importantperson in the world, suddenly
(15:55):
Like how did this happen, Ithought I was like an
intelligent, you know person whocould reason perfectly and not
like suddenly feeling like aBeatles fan in the 1960s or
something that is amazing.
Speaker 2 (16:09):
And yeah, so we're not the only fanboys.
It's not all that.
And then I obviously then on toCravath.
We talked to Lisa Jorgensenquite recently actually,
obviously at Wide Bay, you'llknow her well.
She has also done the HolyTrinity of in-house private
practice and institutionalCravath was presumably another
(16:30):
kind of adventure in a differentdirection, going into private
practice.
Speaker 3 (16:34):
Yeah, yeah, very much .
So you know it's serving a lotof clients, not one client.
The in-house role has, you know, I always loved it because you
get to really know the clientwell, the business people, the
strategy, the legal issues, thebusiness people, the strategy,
(16:57):
the legal issues.
In a law firm role, you know,you're getting to know, as best
you can, lots of differentclients.
And here, you know this is,we're in the M&A world, so we're
doing big ticket deals right Inmany industries entertainment
mentioned before, biopharma,travel and transportation
materials, products like that aswell as big ticket litigation.
(17:21):
So, yeah, it's a very differentenvironment.
It's a place where you knowpeople don't come to you, to a
place like Cravath with theirnormal legal issues.
They either handle thosein-house or they get other
lawyers to handle them.
They come to Cravath with theirmost pressing sort of business
issues.
So you get used to everythingyou know feeling like a high
(17:44):
wire act.
Speaker 2 (17:48):
That still sounds exciting, if stressful by the
sound of it.
Yeah, I'm still smiling.
So we were actually originallyplanning to try and catch up
with you when Lee and I wereover at Pinter in Atlanta.
I think I did actually bumpinto you at the GLIPA conference
in fact.
So we did kind of cross paths,but at the time we were
(18:11):
obviously talking to a lot ofAmerican players, as it were,
but we didn't ever actually getinto a little overview of the
state of the nation in terms of,in particular, the patent side
of things in the US, any kind ofbig headlines that you think
are worth mentioning about howthings are going over there
right now.
Speaker 3 (18:28):
Yeah, sure, and I, for your audience, I have to
first say yeah, we were onliterally the Atlanta Braves
football field, right in thegiant indoor stadium, and they
had the goalposts set up andthey had football set up, with
like attendance for people totry to kick a field goal from 20
(18:49):
yards out or something likethat, and if I remember right,
greenlandilym punched onethrough the upright.
Speaker 2 (18:55):
I wish.
I'm not sure I did.
Speaker 1 (18:58):
You didn't tell me this, Gwilym.
Speaker 2 (19:02):
I'm not sure I've ever got a ball between two
posts in my life, but if peopleremember that then I'll accept
it.
Speaker 3 (19:09):
That's the way I remember it.
So anyway, say to the US patentsystem you know, I wish I could
say that it was strong andhealthy, but it's kind of not in
many ways, and you can see thatjust by reviewing very briefly
the legislation that's pendingto try and fix it.
So just the other day a newbill was introduced in Congress
(19:34):
called the Restore Act, thatwould roll back the eBay
injunction decision.
That has effectively eliminatedinjunctive relief for patent
infringement.
You have it in the UK.
You are, your courts arebrilliant at issuing injunctions
.
Of course in Germany you getinjunctions readily once a
(19:54):
patent is found to be valid andinfringed.
Unfortunately, in the US, postAviva, you almost never get an
injunction anymore, even once apatent is found to be valid and
infringed, even if you're amanufacturer enforcing against a
competitor.
So the Restore Act fixed that.
We also have pending the PatentEligibility Restoration Act,
(20:15):
pira, which would unwind ourterrible state of patent
eligibility under our Section101 that's created so much chaos
and confusion.
We also have pending thePREVAIL Act A lot of acronyms
here.
Prevail is legislation thatwould fix the Patent Trial and
(20:37):
Appeal Board by changingpresumptions, by ensuring that
much like the way the systemworks in Europe if you use the
Patent Trial and Appeal Board tocommence an inter-parties
review what you call oppositions, we call them inter-parties
reviews that you do that and youdon't also fight in the
(21:00):
district court at the same time,which is completely stupid.
And we didn't intend for theAIA to create that world, but it
has created that world, so weneed to fix it.
So anyway, guilhem, that world,but it has created that world,
so we need to fix it.
So anyway, guilhem.
The answer to your question isthings aren't great and we've
got legislation pending to fixthem.
We just need to get those billsthrough.
Speaker 2 (21:22):
Yeah, because I've heard lots of US attorneys
actually just kind of sayingthat the US has become a little
bit anti-patent.
It's no injunctions, very easyto attack and knock them out, so
it's interesting to hearthere's a rebalancing of it.
Presumably this kind oflegislation is quite difficult
to get through.
There's a political angle to it, there's a legislative process
(21:43):
to go through.
So what's the timescale to whatthe prospects at least have
been?
Speaker 3 (21:49):
Yeah well, PEER and PREVAIL have been around for a
while, so they've had a hearingin front of the Senate Judiciary
IP subcommittee.
I actually testified at that,or the PEER?
hearing anyway and we're hopingthey'll get calendared for
markup in the Senate JudiciaryCommittee.
(22:10):
We've been trying to get thatdone since May in the Senate
Judiciary Committee.
We've been trying to get thatdone since May.
The next chance now is going tobe September, but the
legislative calendar is a very,very narrow one right now
because of the presidential andcongressional elections coming
up in the fall.
So it may be and to just becandid I'd say it's likely that
those bills could get extendedinto 2025.
(22:33):
They'll have to be reintroduced, but they likely will be for
further legislativeconsideration then, Like I said
about Restore, it was justintroduced earlier this week, so
it has not yet had a hearing,so it's like a little ways
further off.
Speaker 2 (22:49):
But I hope that we'll get progress and action and
maybe even enactment of one ortwo or maybe all three of those
bills by 2025 I mean that isinteresting and good to hear,
because I think one of thethings we've been hearing over
here is partly perhaps becauseof this perception of in within
(23:10):
the the US isn't necessarily thebest place to enforce right now
.
It's been shifting thelandscape a little bit to make
the new European UPC potentiallya starting point for a kind of
a global litigation program.
Is that something that you'vebeen advising or how are you
seeing that balance?
Speaker 3 (23:30):
Yes, it's a great point, grelim, and absolutely
I'm advised in fact helped puttogether a program with a German
firm that we work with a lothere in New York on the UPC late
last year I think it was aftersix months.
We've been doing updates afterthe first year.
(23:51):
I'm really super pleased to seethe traction the UPC is getting
gradual but continuousimprovement and uptake in cases
and issuing decisions, and soI'm very actively telling
clients you ought to be thinkingabout the UPC to enforce your
(24:11):
IP rights now.
Speaker 2 (24:13):
Are you finding that, uh, clients are comfortable
with it slightly some peoplemight say slightly confusing
array of different authoritiesand and rights within the
european system, or do you findyou can navigate through?
Take them through it fairlyclearly right, I think it.
Speaker 3 (24:33):
You know, I would say it's complicated, right, and
clients have to get used to it,but they are, and there's always
a bit of caution and reluctanceto be the first to jump in.
But that's done now, becauseothers have jumped in and we're
starting to see a track record,and a good one, build up, and so
(24:55):
I feel like, yes, it'scomplicated, yes, it takes some
explaining.
We're able to do some of itover here and then we get, you
know, firms in the UK or in, youknow, continental Europe
involved.
To take it to the next level ofclients are, you know,
seriously interested folks whoare actually licensed to
practice there.
But it's explainable and Ithink clients are getting more
(25:17):
comfortable that if youdesignate your patents, you can
then enforce them and it's agreat court.
Speaker 2 (25:27):
Interestingly before we started recording proper.
You're actually asking about.
One of the developments whichyou can touch on actually is um,
where the eu ipo, which is theeu kind of intellectual property
organization, is fitting in onthe patent landscape, given that
we have, of course, also theeuropean patent office, um,
which for less kind of uh ip, um, saudi people gives european
(25:51):
patents because not a europeanunion organization kind of
predates the modern form.
So we have this slight conflict.
But yeah, the Saudi peoplegives European patents but is
not a European Unionorganisation kind of predates
the modern form.
So we have this slight conflict.
But yeah, dave, you wereexpressing slight confusion, as
it were, about why the EUIPO isstepping in on
standards-essential patents.
How's that being viewed overthere?
Speaker 3 (26:07):
Yeah, it's not viewed well here, even by the
government, including up to theSecretary of Commerce.
Gina Raimondo has made veryclear and conspicuous statements
to her European counterpartsthat America is concerned about
what at first the Commission andnow the, you know, the
(26:30):
Parliament is doing relative tousing a trademark granting
authority.
And there's another sub storythere why the trademark granting
authority would call itself theintellectual property office,
intentionally misdescribingitself.
That's normally, at least inthe US.
That actually could betrademark infringement in its
own right.
But for whatever reason, thetrademark granting authority
(26:54):
deceptively misdescribes itselfas an intellectual property
authority and now is poised totake on a patent mission which
it itself has openly admitted inthe past that it's got
absolutely no competency in.
So okay, I mean, it's like ifyou spend enough money you can
get pigs to fly right, you justhave to pour enough money into
(27:17):
it.
And if you spend enough moneyyou can build up a competency in
an agency that by its ownadmission lacks any such
competency.
But that really is, in my mind,not the big picture.
The big picture is you know whydo we have bureaucrats anywhere
in Europe, in the US, anywhere,substituting their judgment for
(27:40):
the marketplace?
Standard, essential patentlicensing happens every single
day.
I did it for a living for manyyears, so I know exactly how it
works, both as licensor and aslicensee.
There's very little litigationgoing on, writ large From time
to time.
You know, advocates have, Ithink, intentionally used terms
(28:07):
like patent wars when theythemselves have created the
patent wars.
And really I'll give youanother film metaphor.
You might have seen a long timeago the old Clint Eastwood film
For a Few Dollars More, wherehe plays a Western gunslinger
who stokes a war between tworival families by going to each
(28:32):
one in series and saying I canhelp you get at the other guys
if you just pay me more money.
And then going to the otherguys and saying I can help you
get at the first guys if youjust pay me more money for a few
dollars more.
Well, that's what's going onwith those who say there are
patent wars.
It's the folks who are filingthe patent infringement lawsuits
(28:55):
then who say, oh my God,there's a patent war going on,
without saying, well, yeah,there is, because I started it.
So, setting that aside, therereally is very little litigation
in the SEP area.
Even the commission's owncommissioned sponsored study
(29:17):
found that.
But yet they go ahead anywayand create this new weird
undertaking to derailenforcement and give it, by the
way, back to the UPC an advancedvote of no confidence in this
brand new brilliant court that'sbeen set up to decide SEP
(29:41):
disputes, among others.
And the bureaucrats come in andsay we don't like you guys, so
we're going to take this wholegenre of licensing away from you
and give it to bureaucrats atthe trademark granting authority
.
I mean, if the whole thingmakes no sense to you, you can
imagine how we feel over hereabout it.
(30:02):
So, unfortunately, myunderstanding is that's all gone
through and happening and it'sjust a question now of how much
damage gets done.
That's very clear, kurt.
Thank you.
Speaker 2 (30:11):
It's just a question now of how much damage gets done
.
That's very clear, kurt.
Thank you Out of interest.
You mentioned the whole conceptof, as you said, a
bureaucracy-based organisationrunning the standards-essential
argument.
Where do you think the EuropeanPatent Office, which at least
has patents in the name, wouldfit in with this kind of debate?
Or is it the same point thatthis is one for the market to
(30:33):
settle?
Speaker 3 (30:35):
Well, as I understand it, the EPO has stepped in.
They've been helpful actually,and I thank Antonio Campinos for
the letter that he sent in Ithink that was to the commission
at the time or relatedauthorities saying whoa, just be
aware, this is what we do for aliving and we got a lot of
(30:57):
expertise.
Aware, you know, this is whatwe do for a living and we got a
lot of expertise.
We might actually be able tohelp you.
You kind of haven't asked us,but we're right over here in
Munich, so I thought that washelpful.
I think it's also helpful thatthe EPO has stepped in and
offered to EU IPO the trademark,granting people again to say,
(31:17):
look, we got the competency, soif you're going to take this on,
we can actually help you withit.
So that seems constructive.
But I mean again, it misses thebigger picture, which is that
the government doesn't need tobe involved in royalty rate
setting for SEPs or otherpatents.
There's a marketplace that worksfine.
We now know you know, throughthe Avance patent pool that I'm
(31:41):
sure you're very familiar withthat literally essentially every
automaker outside the Chineseautomakers has taken the Avance
license.
It's extremely inexpensive.
It's like, I think, $32 through, if I remember right through
essentially all the patents, youneed to put 5G in an automobile
(32:03):
One-time payment.
And I recently bought a newfancy automobile that's just got
4G in it and I find out I'mpaying about that much every
month for my fancy automobile'sconnectivity right so that it
can, you know, tell me what thespeed limit is as I'm driving
(32:23):
along on the road and you know,and provide me with all kinds of
other useful information.
So you know, for less than theprice of washing your car once
and about what I'm paying eachmonth for probably what will be
the 10 year life of my vehiclefor connectivity.
The automakers get access tothe entire stack of patents
(32:48):
that's required.
It's like the deal of thecentury for them.
No wonder they all took thelicense and they love it.
So I find the whole situationextremely confusing.
Speaker 2 (33:06):
And it's the kind of thing where you just know
there's another agenda at play,because it doesn't make sense
the agenda that's been describedit is.
I mean often when people talkto me in broad terms, does the
IP system work?
Where can we show it working?
Well, I tend to give is, inbroad terms, the standards
central system, because it iswhat underpins the global
interoperability, etc.
I can say that anywhere else inthe world it just works and
(33:26):
that's because everyonesubscribes to the same
technology inputs and pays in bythe royalties.
One of the issues I think thatcomes up is the arbitrage
opportunities.
Because we have a global, let'ssay, telecom system, we do not
have a global legal system.
Do you think that's part of theproblem?
You mentioned it in the run-up.
(33:48):
People have been Tesla hopingthe UK court would set a global
rate, uk court saying I'm nottoo sure we actually do that.
How do you solve that problemwhen it does come to litigation?
Speaker 3 (34:04):
It's a great question .
Guleem Courts setting globalroyalty rates for SDPs generally
or now for pools, is a veryvexing problem.
The Chinese courts are showinga very strong propensity for
wanting to get into that gameand using it as a vehicle to
drive royalty rates down to theadvantage of Chinese national
(34:27):
champions in the auto industry,in the telecommunications
industry, etc.
So it's a very dangerous gameto get into.
But the good news is that wenow know from the Avance patent
pool that courts don't need toget into that game because these
pools work right and Avance isnot the only one that works.
(34:47):
They work when they're designedright and there's some issues
with designing them right, somethings that can go wrong and
things need to be navigated.
But I think that's what's goingon in that Tesla case that came
out in the UK recently, whereyou know, going back to unwired
planet, the UK court did itsvery best job and and to you
(35:11):
know and again people say it'sset a global royalty rate it
didn't do that.
It said look, we're going toissue an injunction in the UK
over the UK patents unless youfolks can come together and
agree on a royalty rate and allthe extant evidence shows that
the market for patent licensingin this area is to grant global
(35:33):
licenses.
So go figure that out or you'regoing to have an injunction in
the US I mean the UK over UKpatents.
The UK court, to my knowledge,reading it as an American lawyer
, did not try to say we're goingto exercise jurisdiction over
Chinese patents or over USpatents.
It only found over UK patents.
(35:54):
All right, so set that aside.
That's the unwind planetdecision, which has been read,
you know, to say that a singlecourt can grant a global royalty
rate.
And that's the decision thatthe Chinese courts have been
latching on to to say, well, ifthe UK can do it, why can't we
do it in China?
We're going to set a globalroyalty rate and we're going to
(36:19):
do it in a way that advantagesChinese companies.
And so here we are.
The Tesla decision now is thefirst case where you've got a
pool and you've got a licensee,not a licensor saying we're
willing to live with a globalroyalty rate, but the licensee
saying we want the UK court toset a global royalty rate for us
(36:39):
.
And the UK court decision, as Iread it, says time out, we're
done, we're not doing thisanymore.
This is a licensee and it's apool.
The pool administrator has noauthority over the pool
licensors, the patent holders,and the UK court is absolutely
(37:03):
the wrong place to get alicensee actually an American
company, tesla coming in andsaying we want you to grant a
global royalty rate for us inthe UK court over a licensor
which I think was an Americancompany also.
So I view that case, guilhem,as a watershed moment, in that
(37:27):
the UK court is wisely saying wedon't need to be involved in
this.
These pools work, fine.
There are some things courtsare not really great at doing
and judges having the humilityto recognize that and to
exercise a view of comedy wherethey do not overextend their
(37:49):
laws over the property of othercountries, like patents and
mature of the UK court and Ithink it repositions from
Unwired Planet in view ofintervening history.
We now know these pools work.
(38:10):
We now know SEP licensing works.
Let the market work.
Courts don't need to getinvolved Beyond deciding
disputes about patents issued intheir country and giving
remedies in their country.
Perfectly fine if the Chinesecourts or US courts or whatever
want to do that, but let thepools work.
We've shown, we have learnedthat they do.
Speaker 2 (38:32):
Thank you.
And yeah, I mean, lord JusticeBurse is a good friend of the
podcast and obviously he waspivotal in that decision and
fantastic lawmaker, brilliantguy, yeah, great lawmaker, and
basically you know, you guyshave great reality, um, and I I
think his position absolutelywas that.
So this is, this is all I can.
This is as far as it goes, butI have to apply the law that
I've got in front of me to thefacts I've in front of me.
(38:54):
It's definitely beenmisrepresented as a land grab,
whereas actually it's a verycommon sense saying this is a
bigger problem than the UK calls.
All I can do is tell you whatthe situation is here.
So it's good to hear that it'sbeing viewed in that spirit,
although being misused, possiblyin certain places.
But, dave, I've been dominating.
I know Lee is itching to takeover.
Speaker 1 (39:14):
So I don't know if itching is quite the word,
because I've just I've just beensat here learning and I've been
learning.
So, Dave, I'm going to try todo a neat little segue now.
I don't know if it's going towork, but let me try and work it
.
We've talked a little bit aboutthe EU positioning around this.
Of course, it's not just onSEPs, there's also moves around
(39:42):
SPCs and also there's movesaround the EU trying to be to
express some kind of leverageover the EPO when it comes to
sanctions, for example theRussian sanctions.
So the EU's been doing a lotaround patents all of a sudden.
But it's not just pro-patentstuff.
We're hearing.
We're hearing a lot ofanti-patent stuff, not
necessarily within theCommission itself, but around
the Commission, coming out ofdiscussions around vaccine
waiver.
If we go back to the pandemic,what's the position like in the
(40:03):
States?
Do you get a lot ofanti-pattern rhetoric there?
Speaker 3 (40:07):
Tremendous.
It's a huge problem.
So you know, we're fightingright now tooth and nail
actually, and they're valiantwarriors in DC andC and beyond.
Even today, this morning, I'mgetting emails.
You know, for decades, goingback 40 years, we've had a law
(40:27):
called the Bayh-Dole Act.
It was passed in 1980, and itwas heralded as perhaps the most
important commerciallegislation of the entire 20th
century.
It's been credited withcreating trillions of dollars of
economic opportunity andmillions of jobs in the US, and
it's been copied by many othercountries.
(40:48):
I remember when I was stationedin Japan, when I was at IBM, I
helped explain and advocate infavor of what became the
Japanese Bayh-Dole Act, and theidea is very simple.
It actually is to say look,contractors, many, many, many
companies that take funding fromthe government should still be
(41:09):
permitted to own the inventionsthey create using that
government funding, subject tosome very basic reporting
requirements and a backstopwhere, if there's like a
national emergency and thepatentee can't produce goods,
the government can have a rightto march in, as we call it, and
(41:32):
the Bayh-Dole Act was passedunder that rubric.
It's worked brilliantly well.
There have been many requestsby commercial entities to march
in and the government never has.
Who are in the Republican andDemocratic administrations,
including when I was in thegovernment.
So suddenly, lee, withabsolutely no reason, no
(41:53):
provocation, the excuse given ofwanting to control high drug
prices, but just a bald excuse,and I come back to that.
You know we've got the currentadministration saying we're
going to turn that all on itshead.
We're going to re-legislatefrom the administration, which
of course is illegal.
(42:14):
Congress legislates, theadministration does not
legislate in the US, and we'rejust going to declare that we
want the government to startmarching in.
You know, essentially, any timeany competitor comes in and
says I can manufacture that forless money which of course you
know competitors from everywhere, starting with China you could
(42:35):
expect to jump all over thatopportunity.
Right, let someone else investbillions in working all the
kinks out of a new product orservice, let them get it on the
market, then come in and say Ican do it less expensively.
Of course I can.
I didn't invest the billions inthe R&D in the first place.
So absolutely insane.
You know, bald-faced grab andoverruling of legislation.
(43:03):
And we're finding that in the USright now that the guidelines,
that or policy statement thatthe government was supposed to
issue from the administrationwas supposed to come out in June
, if I remember right, and itdidn't, I think largely because
there's been an incredible hueand cry over it and it didn't
(43:24):
come out in July.
Now we're in August and youknow we still haven't seen it.
So you know it could come outany day.
I wouldn't be surprised if itcomes out during the dog days of
summer here, when things arequiet and DC is empty in August,
when things are quiet and DC isempty in August.
But I hope it never comes out.
So that's just one example.
(43:48):
You know we've endured the tripswaivers that you mentioned,
where Europe was the adult inthe room.
I mean, historically, the UShad always been great at saying
absolutely not.
We're not waving tripsprovisions in order to to
nationalize patents, patents orset patents aside.
The patents have nothing to dowith drug availability, vaccine
(44:11):
availability, transportation,refrigeration, government
corruption in many countries,vaccine hesitancy, lack of
trained medical practitionersthe list goes on and on.
There are many well-documentedreasons why vaccines don't make
(44:31):
it to people in some parts ofthe world and it's a terrible
problem.
But it's got nothing to do withpatent system.
So if you actually blame it onthe patent system and try and
use the patent system to solvethe problem.
You're actually killing morepeople, right?
Because in the process of doingthat, you're not solving the
real problems.
You are rearranging deck chairs, right as we say, while the
(44:53):
ship goes down.
So absolutely egregious,irresponsible to suggest that
TRIP should be waived for thevaccines or for the diagnostics
or anything.
And I was shocked, stunned,appalled that the US didn't step
up.
I was super pleased that Europedid and said this is crazy,
(45:14):
we're not doing this, we're notagreeing to it.
Speaker 1 (45:16):
Yeah, sipa itself took a really strong position on
that in terms of the Europeandimension, so we were really
very, very happy with theposition that Europe took on
that.
Is this in any way?
I want to kind of segue into aproject that you're now heavily
involved in with Andre Iancu.
Was any part of thisinfluential in you and Andre and
(45:38):
others setting up the Councilfor Innovation and Promotion?
Speaker 3 (45:41):
No, you know I think all of it played a role the
recognition that the US IPsystem is moving in the wrong
direction.
You know, generally writ large,that a strong, credible, clear,
simple, pro-innovation voice isneeded to speak truth to power.
It was all of those things.
(46:16):
But, lee, you're right, wouldwe have created C4IP?
If everything were going greatwith the IP system?
I'm not sure there would havebeen any need for it.
Speaker 1 (46:26):
And so what are your big aims?
How does the world lookdifferent, or certainly the
states look different, five, tenyears down the line so how?
Speaker 3 (46:36):
what do we want to see happen?
So yeah, so let me reel it off.
We've created a scorecard amongmany projects, and this is a
first ever scorecard rating andracking and giving a letter
grade A to F to every singlemember of the US Congress.
(46:56):
Every congressperson, everysenator, every single person
gets a letter grade and theletter grade is calculated
objectively.
That's a letter grade and theletter grade is calculated
objectively.
We actually hired an Israeliconcilium economist not not
(47:30):
patent lawyers to put thistogether by curating every
speech, every statement, everypress release, every vote, every
floor statement, on and on andon that every member of Congress
makes pro-IP or anti-IP,racking and stacking everything,
and that produces the score foreach member.
So, as an example then, comingback to your question, lee, our
vision is that in five years bythe way, when we came up with
the first index, the firstversion of this, the first
scorecard earlier this year, theaverage score, I want to say,
was like C minus.
(47:52):
There were just a few membersof the Senate that scored A's
and a few B's, and you know someF's as well, quite frankly.
And so it's out there, it'svery transparent, and you can
find the scorecard at thewebsite c4iporg and you know
(48:12):
it's one of those read it andweep kind of things.
Our vision is that every memberof Congress I mean it'll be
asking a little much to say wewant every member to have an A,
but I would tell you our visionis we could get every member up
to a B level, at least a B level.
That would be great.
(48:32):
That's number one.
Number two one of the thingsthat's a huge theme for us in
C4IP is that a governmentofficial, really anyone if they
say they are pro-innovation,they must be pro-intellectual
property.
You cannot say you'repro-innovation without also
(48:55):
being pro-intellectual property.
And of course, everyone saysthey're pro-innovation.
Find a member of parliamentthat says, oh, I'm against
innovation, you're not going tofind that they're all
pro-innovation.
Says, oh, I'm againstinnovation, you're not going to
find that they're allpro-innovation.
So we're trying to create thisequation to put a lot of
pressure on for the propositionthat, no, you cannot say you're
pro-innovation if you areworking against intellectual
(49:18):
property.
You can only say you arepro-innovation if you are
working for a strong andeffective intellectual property
system.
And we're going to hold folksaccountable for that.
So what's our vision for fiveyears from now?
That every member of Congresswill say, because I'm
pro-innovation, I am alsopro-intellectual property.
(49:39):
That would be great and I thinkthat should be doable.
I don't know.
Well, we have a few stragglersprobably.
We got some people who stillthink the world is flat, but you
know, I would say most everyone.
So the last one I'll give you Icould go on all day, but I'll
(50:01):
say our vision is that in lessthan five years from now, you
know, like within the nextcouple of years, that those
three pieces of legislation Imentioned restore, prevail and
PIRA are passed into law.
We fixed section 101, we fixedthe PTAB and we fixed
injunctions.
That would be a huge sea changefor the intellectual property
(50:25):
system in the US.
Speaker 1 (50:27):
RAOUL PAL's quite, quite a mission in five years.
Dave, that's good.
Good luck with that, or less.
One of my jobs on the podcastdave is to try and keep us to
time, and we're kind of right upagainst the clock now.
So, um, so, I'm I'm finishedwith all of my questions.
So I'm just going to say thankyou very much for coming on.
It's been an absolute pleasurehaving you on.
It's's been a delight.
But I know that Gwilym's got alittle closer question that he
(50:49):
wants to ask.
Speaker 2 (50:51):
So the context, dave, is that Lee normally has some
question that we're notexpecting to finish off, linked
somehow to the context of thecall, and he's given me the
(51:12):
lovely job of coming up with itthis time.
And I was actually going to say, going back to the fun,
exciting knowledge of just howmany US presidents you've hung
out with, lee, I'll start withyou and Dave, you're going to
have to find someone else foryour answer.
But, ok, famous people you'vemet and you can't mention
somebody you've alreadymentioned in the podcast it
can't be that bloke.
Speaker 1 (51:25):
Who told you you can't sing in a lift?
Uh, morrissey, yeah, I can'tmention.
Speaker 2 (51:28):
Oh, no, no, I can't mention morrissey another one we
need, we need another one, weneed another one bob galdorf
would be a biggie, obviously atthe time, at the time when bob
galdorf was god, um.
Speaker 1 (51:40):
So this was back in my years working in further
education policy, when bob wasthe kind of keynote speaker at a
big conference dinner thing andended up being on my table, sat
next to me he's.
He's a great person to havedinner with, bob yeldof, um,
because he is every bit theperson that you see on the
screen.
He did just, doesn't stop,doesn't stop swearing, doesn't
stop being really, really loud,doesn't stop waving his arms
(52:02):
around soup, soup, goingeverywhere.
That was quite a fun time and,uh.
So, if I'm allowed to william,it would be um, the the recently
departed, uh, his royalhighness, um, the duke of
edinburgh, so, um, prince philip, yeah, but who I've also had
dinner with and and who also hassome interesting mannerisms at
dinner.
So, for example, he, he stoodup and unbuttoned his coat and
(52:25):
had his tie kept straight underhis coat by a big nappy pin.
So I'll give you those two okay, over to you, dave.
Speaker 2 (52:36):
So you've obviously done three presidents.
It was a pretty impressivestart.
Uh, other, go name anotherfamous person in any, any walk
of your lives.
Speaker 3 (52:46):
Yeah, I think of a few Nobel Prize winners that
I've been fortunate to spendtime with, and a number of years
ago we had one from NYU, justdown in lower Manhattan, who had
come up with the economic whatis Nobel Prize for an economic
(53:08):
theory about innovation,spillover effects and the
importance of strong innovationincentives, and had him come
speak here about AI.
Actually, this is, you know,around 2016 or so, before I was
what it is now, was what it isnow, and that was pretty
(53:31):
inspiring because I gave him theobjective of you know, help us
envision what the right IPsystem should be to protect data
.
And he said you know,recognizing the data is
non-rivalrous.
You should have verylightweight protections for it,
and I thought that it soundedobvious once he explained it,
but beforehand it was anythingbut obvious, so that would be my
(53:53):
example.
Speaker 1 (53:55):
So, gwilym, you know how this works.
You don't get away with it.
You post a question, so youbetter have the best answer.
To finish with, Well, I didn't.
Speaker 2 (54:03):
Lee's better at this than me, though, because he
always makes sure he's got areally good answer to his
question.
I actually haven't got a verygood one at all.
Daniel Craig once looked at me,but it does tie in with James
Bond, so there we go.
Speaker 1 (54:15):
Daniel Craig.
Was he wearing his budgiesparklers at the time or was he
properly clothed?
Speaker 2 (54:20):
He was on an aeroplane and he looked like he
did look very cool.
He looked very cool indeed.
There we go.
That's all I got.
That's all I got mate.
Speaker 1 (54:27):
That's sad.
That's sad mate.
Oh, dave, thank you so much forjoining us.
I hope you've enjoyed being onthe podcast as much as we've
loved having you on.
It's been a real pleasure.
As Gwilym and I were talkingabout in the chat, we did some
really heavy stuff there andhopefully this is going to get
sort of great reviews from ourlisteners, who need to leave
(54:48):
those reviews on the podcastingplatform of their choice so that
other people can find thepodcast.
Speaker 3 (54:53):
Yeah, guys, thanks for having me on Lee.
Great to see you.
Great, as always, funconversation.
Speaker 1 (54:58):
Cheers, dave.
That's a wrap, thank you.
Hey, gwilym, you know you're not a great James Bond
fan, are you?
Speaker 2 (00:04):
I know a little James Bond more.
Speaker 1 (00:07):
Have you watched Never Say Never, whatever it is
Something like that, isn't it?
Speaker 2 (00:12):
Never Say, never Again.
Never Say, never Again.
Remake unlicensed remake ofThunderball.
Speaker 1 (00:17):
Yeah.
So the podcast gets a bit likethat, doesn't it?
Because we said on the lastpodcast that that would be our
last one for the season, andthen we get a big hitter come
along and we think, no, we'vegot to get one more in this
season.
Speaker 2 (00:30):
We have, I think, three times now said this is the
last one in the series, this isthe last one in the series and
we are ending on a high, ofcourse, which we're going to
come to.
Yeah, so that's actually a bitof interesting James Bond
knowledge.
By the way, never Say NeverAgain.
Sean Connery was a remake ofThunderball, because they had a
bit of a.
Ian Fleming had an issue withthe film rights versus the book
(00:50):
rights and the film was a bitodd and it wasn't very well
scripted.
So they actually brought DickClements and Ian Lafrenan.
Speaker 1 (01:02):
Oh, that's Army.
Speaker 2 (01:03):
No Porridge, porridge .
Oh, they're the um, that's army, no porridge.
So so they actually reuse ajoke from a ronnie barker joke
from.
Speaker 1 (01:10):
Porridge is reused in never say never again so we
know our guest is on thispodcast and poor davis sat there
thinking what on earth are theytalking about?
Speaker 2 (01:18):
yeah, well, it's a very obscure british but
brilliant british comedy.
But the writers?
There's a scene in never saynever again where um sean
connery has to go and visit adoctor and the doctor says I
need you to fill this sample andsean connery says what from
here?
And that's actually a joke fromporridge.
So there you go.
Fact of the day.
Speaker 1 (01:35):
So I do know my james bond oh yeah, I'm so glad I
said that.
I just wanted to get some kindof reference into never saying
never again about it being thelast one on the podcast.
I didn't, I didn't actuallyknow that you were a true james
bond buff, so um another timeand and only in the series, we
are doing more podcasts yes,it's just the last one of the
series for the summer, um, andthen we're gonna have a little
(01:57):
break for a few weeks, aren't we?
and then we'll start again in umin the autumn.
So shall we get our guest?
Would that be a good place togo next?
Speaker 2 (02:15):
Lee Davis and Gwilym Roberts are the two IPs in the
pod and you are listening to apodcast on intellectual property
brought to you by the CharteredInstitute of Patent.
Speaker 1 (02:22):
Attorney.
So really excited, gwilym,aren't we?
We've been looking forward tothis one for a long time.
We have Dave Kapos with us,former head of the USPTO.
And, dave, I know your legendgoes before you, but do you want
to give yourself a littleintroduction?
Speaker 3 (02:37):
Yeah, surely.
And great to hear about theJames Bond lore.
That's, of course, a superfamous movie franchise that we
love over here in the US as well, and I enjoy watching those
films.
So now I'm going to have to goback Guilhem and rewatch Never
Say Never Again.
(02:57):
I think I was involved in thedeal here a few years ago where
the catalog that catalog wasincluded in the film assets.
If I'm remembering correctlythat it was one of our deals
here, super famous anyway.
So, yeah, great to join youguys, lee and Guilhem, and to be
(03:21):
with the CIPA folks Greatorganization.
As Guilhem knows, I've had somehistory with it.
Going back, I'm Dave Kapos, asLee said, former director of the
USPTO during the Obamaadministration.
Before that I was a chief IPlawyer at IBM, where we had and
IBM still has a nice operationthere in Hursley, where we had,
(03:46):
and IBM still has a niceoperation there in Hursley.
And since then I've been now 11, going on 12 years.
I've been a partner here atCravath in New York City.
As you can see, that isactually New York City behind me
on this Thursday morning in theheat of the summer, august 1st,
and it's a pleasure to join youI'd say it's really, it's
(04:08):
really great to have you on.
Speaker 1 (04:09):
Thank you so much for um for for joining us.
So where, where do you want tostart?
Have you got?
Have you got like a reallypressing question for?
Speaker 2 (04:18):
dave, I'm a big fan of starting at the beginning.
So, dave, obviously you cameout.
I think it's through ibm andprior to the us commissioner
role.
That's right, isn't it?
Yeah?
Yeah so just talking abouttalking through what you did
there and what you're up to,because I think you know that's,
that's a pretty impressivestuff.
Speaker 3 (04:34):
Yeah, I'm sorry I missed that.
William the um here at cravath.
Or what I'm doing you knowgenerally outside of the IBM
story.
Speaker 2 (04:44):
So what we were up to there.
Speaker 3 (04:46):
Oh yeah, well, you know at the time.
I mean, things have changed alot, of course, but IBM was
(05:07):
perennially the chief patentholder spend of several hundred
million dollars a year atseveral hundred people all
across the globe, and and thelicensing works.
I mean it's great.
You know, I obviously can'tspeak to IBM now, but I could
say when I worked there it wasabsolutely a great company.
I could have spent the rest ofmy career there had it not been
(05:28):
for, you know, the being askedto go and serve in the
administration and the one otherthing we should come back to
this.
You know IBM in those days wasmaking key innovations in what
we now know to be generative AI.
We didn't call it that then,you know, but when the IBM Deep
(05:52):
Blue computer beat the Jeopardychampion, that was a closed
generative AI system that did it.
So the company researched inthat area and I think still does
, for generations breakingbarriers and what we now are
(06:13):
seeing unfold before us, thatquantum computing comes to mind
as well, that we're starting tosee explode on the scene, and
maybe we'll get to talk aboutthat during the podcast.
Speaker 2 (06:23):
I actually read that Louis Gerstner was CEO there at
one point and he's written quitea good book about how he
handled IBM, because IBM raneverything in the 50s, 60s, 70s,
80s.
It had a bit of a jitter and hecame along and kind of worked
out where it should be and Ithink it's an amazing story yeah
(06:47):
, lou was.
Speaker 3 (06:48):
he was the ceo and my boss, um, when I sort of was
coming up through the ranks atibm and the book he wrote I
think was called um, makingelephants dance, something like
that, and I've read it.
It is a great book about a, youknow, a terrific, authentic
turnaround.
The company you know it'spublicized in the book, I think
(07:08):
was, you know, within weeks ofliterally not being able to make
payroll, literally running outof cash.
This is a company with a half amillion employees, right, and
Lou came in and, you know, inthe space of his tenure as CEO,
totally turned the place around.
And then Sam Palmisano, who wasmy boss when I was the chief IP
(07:31):
lawyer there and is still agood friend and collaborator I
now sit on the board of hisnonprofit, the Center for Global
Enterprise was, you know, again, a fantastic leader who had the
foresight and the courage tosee things coming like the
commoditization of PCs and harddrive storage and retail store
(07:57):
solutions, and so did theincreasing importance and
prevalence of services in the ITindustry.
And so it was Sam whoorchestrated really important
M&A deals that reshaped thecompany and enabled it to stay
(08:17):
very profitable for another 15,20 years.
Speaker 2 (08:22):
Actually, we'll move on from IBM in a sec, but having
read that book I'm way moreinterested than I was previously
.
It's a little long.
Actually, we'll move on fromIBM in a sec, but having read
that book I'm way moreinterested than I was previously
.
Lee, it's a brilliant book onstrategy actually.
It really is interesting whathe did and I'm a big science
fiction fan.
If you can read any sciencefiction book in the 60s about a
future dystopia, they alwaysfind a dusty computer or it's a
printer roll with IBM printed onit and you realize just how
(08:45):
absolutely prevalent it was inevery area of life.
At one point it's incrediblebecause they're a powerhouse now
as well, as you say, movinginto new areas yeah, remember
the um uh, space odyssey movie,right uh, but how was IBM?
Speaker 3 (09:02):
each letter shifted by one, right?
Yeah, I've heard that Love it.
Speaker 2 (09:11):
And then I mean just the history, because you've got
an interesting story.
As you say, you moved to thegovernment side.
Was that you reaching out orwas it you reached out to?
How did that happen?
Where did you move?
What were the moves?
Speaker 3 (09:26):
No, that was definitely all incoming.
I had no ambitions or reallyinterest in leaving.
I had the I thought you knowthe best job in the world chief
IP lawyer of the biggest IPholder, so I had no interest in
leaving.
I was called at the beginningof the Obama administration
(09:47):
because I was known, you know,as the chief IP lawyer spending
a lot of time in DC.
I've gotten to know, you knowimportant members of Congress
and staff, and so they called meat the beginning of the
administration and said you know, we think the USPTO is in
trouble and would you come andsee if you can help fix it?
Speaker 2 (10:10):
I mean, you were the talk of the town.
I remember it really well, andthen we'll see the turnaround.
I don't know if it was aturnaround, but the work you did
was amazing.
But was it?
Did you jump at it?
Did you jump at it?
Did you think maybe not?
What was your thought processwhen this came in at it?
Did you jump at it?
Did?
Speaker 3 (10:24):
you think, maybe not what.
How did you, what was yourthought process when this came
in?
Well, why so?
What I said was look, um, uh,let me go talk to my wife.
Uh, that was actually exactlywhat I said, because I wasn't
gonna, you know, even thinkabout something like that
without, uh, my wife, um, youknow, agreeing to to, you know,
because, right, the spouse isalong for the journey, as rough
(10:47):
as it can get, and my wife wasvery supportive and so, right, I
was able to then go forwardwith the job.
Speaker 2 (10:56):
And I mean Lee and I can have a fanboy moment here,
but I guess you met a couple ofpresidents over your time as a
result of that role.
Speaker 3 (11:05):
You've met a couple of presidents over your time as
a result of that role.
Yeah, I got to know PresidentObama fairly well.
There were some weeks I'mlooking at pictures of us up
here on my office some weekswhen I was spending so much time
at the White House.
It's very disruptive to gothere because you know you got
to go through security to get in.
It takes time.
You got to leave your devicesso I'd always bring hard copy
(11:30):
paper with me, so I havesomething to do.
Then you're perennially waitingfor your meeting with the
president and whatever or otheryou know members of the vice
president.
I did some work with Joe Biden,now President Biden, when he was
vice president.
He was very good in those daysand really could run a room of
CEOs.
That was what I was involvedwith him on some entertainment
(11:51):
industry work.
But yeah, so I got to spend afair amount of time with
President Obama, spent some timeagain with Joe Biden, then vice
president, even before thatwith President clinton, so I've
gotten to know a few of them, atleast in passing that's quite
cool, can?
Speaker 1 (12:10):
I can.
I just segue and do a littlekind of.
I know we don't do politics onthe podcast, but um so, um.
So tell me if I'm going downthe wrong street with this one
and we can always cut it out.
But dave, um.
So the the way, the way thesystem works in the states, with
the head of the uspto beinglargely a political appointment,
is obviously very different tothe way it works in the UK,
where we have a career civilservice and civil service is
(12:30):
very disconnected from partypolitics.
How, in your experience, howdoes the manner of the likes of
USPTO director appointmentsframe IP policy in the States of
USPTO director appointmentsframe IP policy in the States.
Speaker 3 (12:44):
Well, it is indeed a policy job here in the US and
it's what's called a past job,presidentially appointed, Senate
confirmed.
So it's one of about a thousandor so roles in the government
that require the appointment bythe president of the United
States and Senate confirmation.
(13:05):
So it's a political job.
You serve at the will and whimof the president.
You can be dismissed on anygiven day for any reason or no
reason, you know, by thepresident.
And the role is, you know it'sa kind of a two-hatted role.
One is to make the trains run,examine and issue patents and
(13:26):
trademarks, and then the otherhat manager budget of now.
You know at the time it wasaround $3 billion, Now it's
around $5 billion, I think maybefour and change and, but you
know, at the time was around10,000 employees, I think it may
be around 13,000 now.
That's one side.
And then the other side is thepolicy hat advising, as is in
(13:49):
the law, right, advising theSecretary of Commerce and the
President, through the Secretaryof Commerce, on intellectual
property policy issues, patent,trademark, trade secret,
copyright.
So in that role, you knowyou're constantly jousting and
jostling in the administration,you know, with other agency
(14:10):
heads and the White House, andyou know, OSTP, Office of
Science, Technology Policy, OMB,Office of Management and Budget
, on and on and on, in order toadvance intellectual
property-related policies.
Speaker 2 (14:28):
So just before we move on from that, I was going
to say, I mean, yeah, lee and Iwe've met a few presidents
ourselves, obviously, butstrictly speaking, presidents of
the Chartered Institute ofPatent Determinants.
Even so, some prettyhigh-powered players.
Speaker 1 (14:45):
Including, of course, roger Berto David DeWitt.
In fact, you very kindly cameto visit SEPA.
I think in the it was probablythe last few months of your
tenure at the USPTO when, backin the days when Roger was vice
president at SEPA, yes, yeah,and since I remember having a
meeting with the CIPA folks.
Speaker 2 (15:07):
So I think we live with the president.
No, they won't have me.
They won't have me.
I'd have him tomorrow.
Speaker 1 (15:14):
Dave, no, they won't have me.
They won't have me.
Speaker 2 (15:16):
I'd have him tomorrow , dave, but he won't have me.
Thank you, that's very kindlyso.
Yeah, lee, and I have obviouslymet a lot of presidents.
I was going to say this beforeI close, lee, but I'm not going
to because I don't think we'regoing to win.
So, dave, you've mentionedClinton, obama, biden.
Who's your?
Speaker 3 (15:33):
favorite president of those three?
No, that would be a.
It's like asking someone youknow which is your favorite of
your kids All three superamazing and can really run a
room.
The thing that's the mostamazing about these folks all of
them, I found is when you're ina room with them.
there could be a hundred otherpeople there and you feel like
you are the most importantperson in the world, suddenly
(15:55):
Like how did this happen, Ithought I was like an
intelligent, you know person whocould reason perfectly and not
like suddenly feeling like aBeatles fan in the 1960s or
something that is amazing.
Speaker 2 (16:09):
And yeah, so we're not the only fanboys.
It's not all that.
And then I obviously then on toCravath.
We talked to Lisa Jorgensenquite recently actually,
obviously at Wide Bay, you'llknow her well.
She has also done the HolyTrinity of in-house private
practice and institutionalCravath was presumably another
(16:30):
kind of adventure in a differentdirection, going into private
practice.
Speaker 3 (16:34):
Yeah, yeah, very much .
So you know it's serving a lotof clients, not one client.
The in-house role has, you know, I always loved it because you
get to really know the clientwell, the business people, the
strategy, the legal issues, thebusiness people, the strategy,
(16:57):
the legal issues.
In a law firm role, you know,you're getting to know, as best
you can, lots of differentclients.
And here, you know this is,we're in the M&A world, so we're
doing big ticket deals right Inmany industries entertainment
mentioned before, biopharma,travel and transportation
materials, products like that aswell as big ticket litigation.
(17:21):
So, yeah, it's a very differentenvironment.
It's a place where you knowpeople don't come to you, to a
place like Cravath with theirnormal legal issues.
They either handle thosein-house or they get other
lawyers to handle them.
They come to Cravath with theirmost pressing sort of business
issues.
So you get used to everythingyou know feeling like a high
(17:44):
wire act.
Speaker 2 (17:48):
That still sounds exciting, if stressful by the
sound of it.
Yeah, I'm still smiling.
So we were actually originallyplanning to try and catch up
with you when Lee and I wereover at Pinter in Atlanta.
I think I did actually bumpinto you at the GLIPA conference
in fact.
So we did kind of cross paths,but at the time we were
(18:11):
obviously talking to a lot ofAmerican players, as it were,
but we didn't ever actually getinto a little overview of the
state of the nation in terms of,in particular, the patent side
of things in the US, any kind ofbig headlines that you think
are worth mentioning about howthings are going over there
right now.
Speaker 3 (18:28):
Yeah, sure, and I, for your audience, I have to
first say yeah, we were onliterally the Atlanta Braves
football field, right in thegiant indoor stadium, and they
had the goalposts set up andthey had football set up, with
like attendance for people totry to kick a field goal from 20
(18:49):
yards out or something likethat, and if I remember right,
greenlandilym punched onethrough the upright.
Speaker 2 (18:55):
I wish.
I'm not sure I did.
Speaker 1 (18:58):
You didn't tell me this, Gwilym.
Speaker 2 (19:02):
I'm not sure I've ever got a ball between two
posts in my life, but if peopleremember that then I'll accept
it.
Speaker 3 (19:09):
That's the way I remember it.
So anyway, say to the US patentsystem you know, I wish I could
say that it was strong andhealthy, but it's kind of not in
many ways, and you can see thatjust by reviewing very briefly
the legislation that's pendingto try and fix it.
So just the other day a newbill was introduced in Congress
(19:34):
called the Restore Act, thatwould roll back the eBay
injunction decision.
That has effectively eliminatedinjunctive relief for patent
infringement.
You have it in the UK.
You are, your courts arebrilliant at issuing injunctions
.
Of course in Germany you getinjunctions readily once a
(19:54):
patent is found to be valid andinfringed.
Unfortunately, in the US, postAviva, you almost never get an
injunction anymore, even once apatent is found to be valid and
infringed, even if you're amanufacturer enforcing against a
competitor.
So the Restore Act fixed that.
We also have pending the PatentEligibility Restoration Act,
(20:15):
pira, which would unwind ourterrible state of patent
eligibility under our Section101 that's created so much chaos
and confusion.
We also have pending thePREVAIL Act A lot of acronyms
here.
Prevail is legislation thatwould fix the Patent Trial and
(20:37):
Appeal Board by changingpresumptions, by ensuring that
much like the way the systemworks in Europe if you use the
Patent Trial and Appeal Board tocommence an inter-parties
review what you call oppositions, we call them inter-parties
reviews that you do that and youdon't also fight in the
(21:00):
district court at the same time,which is completely stupid.
And we didn't intend for theAIA to create that world, but it
has created that world, so weneed to fix it.
So anyway, guilhem, that world,but it has created that world,
so we need to fix it.
So anyway, guilhem.
The answer to your question isthings aren't great and we've
got legislation pending to fixthem.
We just need to get those billsthrough.
Speaker 2 (21:22):
Yeah, because I've heard lots of US attorneys
actually just kind of sayingthat the US has become a little
bit anti-patent.
It's no injunctions, very easyto attack and knock them out, so
it's interesting to hearthere's a rebalancing of it.
Presumably this kind oflegislation is quite difficult
to get through.
There's a political angle to it, there's a legislative process
(21:43):
to go through.
So what's the timescale to whatthe prospects at least have
been?
Speaker 3 (21:49):
Yeah well, PEER and PREVAIL have been around for a
while, so they've had a hearingin front of the Senate Judiciary
IP subcommittee.
I actually testified at that,or the PEER?
hearing anyway and we're hopingthey'll get calendared for
markup in the Senate JudiciaryCommittee.
(22:10):
We've been trying to get thatdone since May in the Senate
Judiciary Committee.
We've been trying to get thatdone since May.
The next chance now is going tobe September, but the
legislative calendar is a very,very narrow one right now
because of the presidential andcongressional elections coming
up in the fall.
So it may be and to just becandid I'd say it's likely that
those bills could get extendedinto 2025.
(22:33):
They'll have to be reintroduced, but they likely will be for
further legislativeconsideration then, Like I said
about Restore, it was justintroduced earlier this week, so
it has not yet had a hearing,so it's like a little ways
further off.
Speaker 2 (22:49):
But I hope that we'll get progress and action and
maybe even enactment of one ortwo or maybe all three of those
bills by 2025 I mean that isinteresting and good to hear,
because I think one of thethings we've been hearing over
here is partly perhaps becauseof this perception of in within
(23:10):
the the US isn't necessarily thebest place to enforce right now
.
It's been shifting thelandscape a little bit to make
the new European UPC potentiallya starting point for a kind of
a global litigation program.
Is that something that you'vebeen advising or how are you
seeing that balance?
Speaker 3 (23:30):
Yes, it's a great point, grelim, and absolutely
I'm advised in fact helped puttogether a program with a German
firm that we work with a lothere in New York on the UPC late
last year I think it was aftersix months.
We've been doing updates afterthe first year.
(23:51):
I'm really super pleased to seethe traction the UPC is getting
gradual but continuousimprovement and uptake in cases
and issuing decisions, and soI'm very actively telling
clients you ought to be thinkingabout the UPC to enforce your
(24:11):
IP rights now.
Speaker 2 (24:13):
Are you finding that, uh, clients are comfortable
with it slightly some peoplemight say slightly confusing
array of different authoritiesand and rights within the
european system, or do you findyou can navigate through?
Take them through it fairlyclearly right, I think it.
Speaker 3 (24:33):
You know, I would say it's complicated, right, and
clients have to get used to it,but they are, and there's always
a bit of caution and reluctanceto be the first to jump in.
But that's done now, becauseothers have jumped in and we're
starting to see a track record,and a good one, build up, and so
(24:55):
I feel like, yes, it'scomplicated, yes, it takes some
explaining.
We're able to do some of itover here and then we get, you
know, firms in the UK or in, youknow, continental Europe
involved.
To take it to the next level ofclients are, you know,
seriously interested folks whoare actually licensed to
practice there.
But it's explainable and Ithink clients are getting more
(25:17):
comfortable that if youdesignate your patents, you can
then enforce them and it's agreat court.
Speaker 2 (25:27):
Interestingly before we started recording proper.
You're actually asking about.
One of the developments whichyou can touch on actually is um,
where the eu ipo, which is theeu kind of intellectual property
organization, is fitting in onthe patent landscape, given that
we have, of course, also theeuropean patent office, um,
which for less kind of uh ip, um, saudi people gives european
(25:51):
patents because not a europeanunion organization kind of
predates the modern form.
So we have this slight conflict.
But yeah, the Saudi peoplegives European patents but is
not a European Unionorganisation kind of predates
the modern form.
So we have this slight conflict.
But yeah, dave, you wereexpressing slight confusion, as
it were, about why the EUIPO isstepping in on
standards-essential patents.
How's that being viewed overthere?
Speaker 3 (26:07):
Yeah, it's not viewed well here, even by the
government, including up to theSecretary of Commerce.
Gina Raimondo has made veryclear and conspicuous statements
to her European counterpartsthat America is concerned about
what at first the Commission andnow the, you know, the
(26:30):
Parliament is doing relative tousing a trademark granting
authority.
And there's another sub storythere why the trademark granting
authority would call itself theintellectual property office,
intentionally misdescribingitself.
That's normally, at least inthe US.
That actually could betrademark infringement in its
own right.
But for whatever reason, thetrademark granting authority
(26:54):
deceptively misdescribes itselfas an intellectual property
authority and now is poised totake on a patent mission which
it itself has openly admitted inthe past that it's got
absolutely no competency in.
So okay, I mean, it's like ifyou spend enough money you can
get pigs to fly right, you justhave to pour enough money into
(27:17):
it.
And if you spend enough moneyyou can build up a competency in
an agency that by its ownadmission lacks any such
competency.
But that really is, in my mind,not the big picture.
The big picture is you know whydo we have bureaucrats anywhere
in Europe, in the US, anywhere,substituting their judgment for
(27:40):
the marketplace?
Standard, essential patentlicensing happens every single
day.
I did it for a living for manyyears, so I know exactly how it
works, both as licensor and aslicensee.
There's very little litigationgoing on, writ large From time
to time.
You know, advocates have, Ithink, intentionally used terms
(28:07):
like patent wars when theythemselves have created the
patent wars.
And really I'll give youanother film metaphor.
You might have seen a long timeago the old Clint Eastwood film
For a Few Dollars More, wherehe plays a Western gunslinger
who stokes a war between tworival families by going to each
(28:32):
one in series and saying I canhelp you get at the other guys
if you just pay me more money.
And then going to the otherguys and saying I can help you
get at the first guys if youjust pay me more money for a few
dollars more.
Well, that's what's going onwith those who say there are
patent wars.
It's the folks who are filingthe patent infringement lawsuits
(28:55):
then who say, oh my God,there's a patent war going on,
without saying, well, yeah,there is, because I started it.
So, setting that aside, therereally is very little litigation
in the SEP area.
Even the commission's owncommissioned sponsored study
(29:17):
found that.
But yet they go ahead anywayand create this new weird
undertaking to derailenforcement and give it, by the
way, back to the UPC an advancedvote of no confidence in this
brand new brilliant court that'sbeen set up to decide SEP
(29:41):
disputes, among others.
And the bureaucrats come in andsay we don't like you guys, so
we're going to take this wholegenre of licensing away from you
and give it to bureaucrats atthe trademark granting authority
.
I mean, if the whole thingmakes no sense to you, you can
imagine how we feel over hereabout it.
(30:02):
So, unfortunately, myunderstanding is that's all gone
through and happening and it'sjust a question now of how much
damage gets done.
That's very clear, kurt.
Thank you.
Speaker 2 (30:11):
It's just a question now of how much damage gets done
.
That's very clear, kurt.
Thank you Out of interest.
You mentioned the whole conceptof, as you said, a
bureaucracy-based organisationrunning the standards-essential
argument.
Where do you think the EuropeanPatent Office, which at least
has patents in the name, wouldfit in with this kind of debate?
Or is it the same point thatthis is one for the market to
(30:33):
settle?
Speaker 3 (30:35):
Well, as I understand it, the EPO has stepped in.
They've been helpful actually,and I thank Antonio Campinos for
the letter that he sent in Ithink that was to the commission
at the time or relatedauthorities saying whoa, just be
aware, this is what we do for aliving and we got a lot of
(30:57):
expertise.
Aware, you know, this is whatwe do for a living and we got a
lot of expertise.
We might actually be able tohelp you.
You kind of haven't asked us,but we're right over here in
Munich, so I thought that washelpful.
I think it's also helpful thatthe EPO has stepped in and
offered to EU IPO the trademark,granting people again to say,
(31:17):
look, we got the competency, soif you're going to take this on,
we can actually help you withit.
So that seems constructive.
But I mean again, it misses thebigger picture, which is that
the government doesn't need tobe involved in royalty rate
setting for SEPs or otherpatents.
There's a marketplace that worksfine.
We now know you know, throughthe Avance patent pool that I'm
(31:41):
sure you're very familiar withthat literally essentially every
automaker outside the Chineseautomakers has taken the Avance
license.
It's extremely inexpensive.
It's like, I think, $32 through, if I remember right through
essentially all the patents, youneed to put 5G in an automobile
(32:03):
One-time payment.
And I recently bought a newfancy automobile that's just got
4G in it and I find out I'mpaying about that much every
month for my fancy automobile'sconnectivity right so that it
can, you know, tell me what thespeed limit is as I'm driving
(32:23):
along on the road and you know,and provide me with all kinds of
other useful information.
So you know, for less than theprice of washing your car once
and about what I'm paying eachmonth for probably what will be
the 10 year life of my vehiclefor connectivity.
The automakers get access tothe entire stack of patents
(32:48):
that's required.
It's like the deal of thecentury for them.
No wonder they all took thelicense and they love it.
So I find the whole situationextremely confusing.
Speaker 2 (33:06):
And it's the kind of thing where you just know
there's another agenda at play,because it doesn't make sense
the agenda that's been describedit is.
I mean often when people talkto me in broad terms, does the
IP system work?
Where can we show it working?
Well, I tend to give is, inbroad terms, the standards
central system, because it iswhat underpins the global
interoperability, etc.
I can say that anywhere else inthe world it just works and
(33:26):
that's because everyonesubscribes to the same
technology inputs and pays in bythe royalties.
One of the issues I think thatcomes up is the arbitrage
opportunities.
Because we have a global, let'ssay, telecom system, we do not
have a global legal system.
Do you think that's part of theproblem?
You mentioned it in the run-up.
(33:48):
People have been Tesla hopingthe UK court would set a global
rate, uk court saying I'm nottoo sure we actually do that.
How do you solve that problemwhen it does come to litigation?
Speaker 3 (34:04):
It's a great question .
Guleem Courts setting globalroyalty rates for SDPs generally
or now for pools, is a veryvexing problem.
The Chinese courts are showinga very strong propensity for
wanting to get into that gameand using it as a vehicle to
drive royalty rates down to theadvantage of Chinese national
(34:27):
champions in the auto industry,in the telecommunications
industry, etc.
So it's a very dangerous gameto get into.
But the good news is that wenow know from the Avance patent
pool that courts don't need toget into that game because these
pools work right and Avance isnot the only one that works.
(34:47):
They work when they're designedright and there's some issues
with designing them right, somethings that can go wrong and
things need to be navigated.
But I think that's what's goingon in that Tesla case that came
out in the UK recently, whereyou know, going back to unwired
planet, the UK court did itsvery best job and and to you
(35:11):
know and again people say it'sset a global royalty rate it
didn't do that.
It said look, we're going toissue an injunction in the UK
over the UK patents unless youfolks can come together and
agree on a royalty rate and allthe extant evidence shows that
the market for patent licensingin this area is to grant global
(35:33):
licenses.
So go figure that out or you'regoing to have an injunction in
the US I mean the UK over UKpatents.
The UK court, to my knowledge,reading it as an American lawyer
, did not try to say we're goingto exercise jurisdiction over
Chinese patents or over USpatents.
It only found over UK patents.
(35:54):
All right, so set that aside.
That's the unwind planetdecision, which has been read,
you know, to say that a singlecourt can grant a global royalty
rate.
And that's the decision thatthe Chinese courts have been
latching on to to say, well, ifthe UK can do it, why can't we
do it in China?
We're going to set a globalroyalty rate and we're going to
(36:19):
do it in a way that advantagesChinese companies.
And so here we are.
The Tesla decision now is thefirst case where you've got a
pool and you've got a licensee,not a licensor saying we're
willing to live with a globalroyalty rate, but the licensee
saying we want the UK court toset a global royalty rate for us
(36:39):
.
And the UK court decision, as Iread it, says time out, we're
done, we're not doing thisanymore.
This is a licensee and it's apool.
The pool administrator has noauthority over the pool
licensors, the patent holders,and the UK court is absolutely
(37:03):
the wrong place to get alicensee actually an American
company, tesla coming in andsaying we want you to grant a
global royalty rate for us inthe UK court over a licensor
which I think was an Americancompany also.
So I view that case, guilhem,as a watershed moment, in that
(37:27):
the UK court is wisely saying wedon't need to be involved in
this.
These pools work, fine.
There are some things courtsare not really great at doing
and judges having the humilityto recognize that and to
exercise a view of comedy wherethey do not overextend their
(37:49):
laws over the property of othercountries, like patents and
mature of the UK court and Ithink it repositions from
Unwired Planet in view ofintervening history.
We now know these pools work.
(38:10):
We now know SEP licensing works.
Let the market work.
Courts don't need to getinvolved Beyond deciding
disputes about patents issued intheir country and giving
remedies in their country.
Perfectly fine if the Chinesecourts or US courts or whatever
want to do that, but let thepools work.
We've shown, we have learnedthat they do.
Speaker 2 (38:32):
Thank you.
And yeah, I mean, lord JusticeBurse is a good friend of the
podcast and obviously he waspivotal in that decision and
fantastic lawmaker, brilliantguy, yeah, great lawmaker, and
basically you know, you guyshave great reality, um, and I I
think his position absolutelywas that.
So this is, this is all I can.
This is as far as it goes, butI have to apply the law that
I've got in front of me to thefacts I've in front of me.
(38:54):
It's definitely beenmisrepresented as a land grab,
whereas actually it's a verycommon sense saying this is a
bigger problem than the UK calls.
All I can do is tell you whatthe situation is here.
So it's good to hear that it'sbeing viewed in that spirit,
although being misused, possiblyin certain places.
But, dave, I've been dominating.
I know Lee is itching to takeover.
Speaker 1 (39:14):
So I don't know if itching is quite the word,
because I've just I've just beensat here learning and I've been
learning.
So, Dave, I'm going to try todo a neat little segue now.
I don't know if it's going towork, but let me try and work it
.
We've talked a little bit aboutthe EU positioning around this.
Of course, it's not just onSEPs, there's also moves around
(39:42):
SPCs and also there's movesaround the EU trying to be to
express some kind of leverageover the EPO when it comes to
sanctions, for example theRussian sanctions.
So the EU's been doing a lotaround patents all of a sudden.
But it's not just pro-patentstuff.
We're hearing.
We're hearing a lot ofanti-patent stuff, not
necessarily within theCommission itself, but around
the Commission, coming out ofdiscussions around vaccine
waiver.
If we go back to the pandemic,what's the position like in the
(40:03):
States?
Do you get a lot ofanti-pattern rhetoric there?
Speaker 3 (40:07):
Tremendous.
It's a huge problem.
So you know, we're fightingright now tooth and nail
actually, and they're valiantwarriors in DC andC and beyond.
Even today, this morning, I'mgetting emails.
You know, for decades, goingback 40 years, we've had a law
(40:27):
called the Bayh-Dole Act.
It was passed in 1980, and itwas heralded as perhaps the most
important commerciallegislation of the entire 20th
century.
It's been credited withcreating trillions of dollars of
economic opportunity andmillions of jobs in the US, and
it's been copied by many othercountries.
(40:48):
I remember when I was stationedin Japan, when I was at IBM, I
helped explain and advocate infavor of what became the
Japanese Bayh-Dole Act, and theidea is very simple.
It actually is to say look,contractors, many, many, many
companies that take funding fromthe government should still be
(41:09):
permitted to own the inventionsthey create using that
government funding, subject tosome very basic reporting
requirements and a backstopwhere, if there's like a
national emergency and thepatentee can't produce goods,
the government can have a rightto march in, as we call it, and
(41:32):
the Bayh-Dole Act was passedunder that rubric.
It's worked brilliantly well.
There have been many requestsby commercial entities to march
in and the government never has.
Who are in the Republican andDemocratic administrations,
including when I was in thegovernment.
So suddenly, lee, withabsolutely no reason, no
(41:53):
provocation, the excuse given ofwanting to control high drug
prices, but just a bald excuse,and I come back to that.
You know we've got the currentadministration saying we're
going to turn that all on itshead.
We're going to re-legislatefrom the administration, which
of course is illegal.
(42:14):
Congress legislates, theadministration does not
legislate in the US, and we'rejust going to declare that we
want the government to startmarching in.
You know, essentially, any timeany competitor comes in and
says I can manufacture that forless money which of course you
know competitors from everywhere, starting with China you could
(42:35):
expect to jump all over thatopportunity.
Right, let someone else investbillions in working all the
kinks out of a new product orservice, let them get it on the
market, then come in and say Ican do it less expensively.
Of course I can.
I didn't invest the billions inthe R&D in the first place.
So absolutely insane.
You know, bald-faced grab andoverruling of legislation.
(43:03):
And we're finding that in the USright now that the guidelines,
that or policy statement thatthe government was supposed to
issue from the administrationwas supposed to come out in June
, if I remember right, and itdidn't, I think largely because
there's been an incredible hueand cry over it and it didn't
(43:24):
come out in July.
Now we're in August and youknow we still haven't seen it.
So you know it could come outany day.
I wouldn't be surprised if itcomes out during the dog days of
summer here, when things arequiet and DC is empty in August,
when things are quiet and DC isempty in August.
But I hope it never comes out.
So that's just one example.
(43:48):
You know we've endured the tripswaivers that you mentioned,
where Europe was the adult inthe room.
I mean, historically, the UShad always been great at saying
absolutely not.
We're not waving tripsprovisions in order to to
nationalize patents, patents orset patents aside.
The patents have nothing to dowith drug availability, vaccine
(44:11):
availability, transportation,refrigeration, government
corruption in many countries,vaccine hesitancy, lack of
trained medical practitionersthe list goes on and on.
There are many well-documentedreasons why vaccines don't make
(44:31):
it to people in some parts ofthe world and it's a terrible
problem.
But it's got nothing to do withpatent system.
So if you actually blame it onthe patent system and try and
use the patent system to solvethe problem.
You're actually killing morepeople, right?
Because in the process of doingthat, you're not solving the
real problems.
You are rearranging deck chairs, right as we say, while the
(44:53):
ship goes down.
So absolutely egregious,irresponsible to suggest that
TRIP should be waived for thevaccines or for the diagnostics
or anything.
And I was shocked, stunned,appalled that the US didn't step
up.
I was super pleased that Europedid and said this is crazy,
(45:14):
we're not doing this, we're notagreeing to it.
Speaker 1 (45:16):
Yeah, sipa itself took a really strong position on
that in terms of the Europeandimension, so we were really
very, very happy with theposition that Europe took on
that.
Is this in any way?
I want to kind of segue into aproject that you're now heavily
involved in with Andre Iancu.
Was any part of thisinfluential in you and Andre and
(45:38):
others setting up the Councilfor Innovation and Promotion?
Speaker 3 (45:41):
No, you know I think all of it played a role the
recognition that the US IPsystem is moving in the wrong
direction.
You know, generally writ large,that a strong, credible, clear,
simple, pro-innovation voice isneeded to speak truth to power.
It was all of those things.
(46:16):
But, lee, you're right, wouldwe have created C4IP?
If everything were going greatwith the IP system?
I'm not sure there would havebeen any need for it.
Speaker 1 (46:26):
And so what are your big aims?
How does the world lookdifferent, or certainly the
states look different, five, tenyears down the line so how?
Speaker 3 (46:36):
what do we want to see happen?
So yeah, so let me reel it off.
We've created a scorecard amongmany projects, and this is a
first ever scorecard rating andracking and giving a letter
grade A to F to every singlemember of the US Congress.
(46:56):
Every congressperson, everysenator, every single person
gets a letter grade and theletter grade is calculated
objectively.
That's a letter grade and theletter grade is calculated
objectively.
We actually hired an Israeliconcilium economist not not
(47:30):
patent lawyers to put thistogether by curating every
speech, every statement, everypress release, every vote, every
floor statement, on and on andon that every member of Congress
makes pro-IP or anti-IP,racking and stacking everything,
and that produces the score foreach member.
So, as an example then, comingback to your question, lee, our
vision is that in five years bythe way, when we came up with
the first index, the firstversion of this, the first
scorecard earlier this year, theaverage score, I want to say,
was like C minus.
(47:52):
There were just a few membersof the Senate that scored A's
and a few B's, and you know someF's as well, quite frankly.
And so it's out there, it'svery transparent, and you can
find the scorecard at thewebsite c4iporg and you know
(48:12):
it's one of those read it andweep kind of things.
Our vision is that every memberof Congress I mean it'll be
asking a little much to say wewant every member to have an A,
but I would tell you our visionis we could get every member up
to a B level, at least a B level.
That would be great.
(48:32):
That's number one.
Number two one of the thingsthat's a huge theme for us in
C4IP is that a governmentofficial, really anyone if they
say they are pro-innovation,they must be pro-intellectual
property.
You cannot say you'repro-innovation without also
(48:55):
being pro-intellectual property.
And of course, everyone saysthey're pro-innovation.
Find a member of parliamentthat says, oh, I'm against
innovation, you're not going tofind that they're all
pro-innovation.
Says, oh, I'm againstinnovation, you're not going to
find that they're allpro-innovation.
So we're trying to create thisequation to put a lot of
pressure on for the propositionthat, no, you cannot say you're
pro-innovation if you areworking against intellectual
(49:18):
property.
You can only say you arepro-innovation if you are
working for a strong andeffective intellectual property
system.
And we're going to hold folksaccountable for that.
So what's our vision for fiveyears from now?
That every member of Congresswill say, because I'm
pro-innovation, I am alsopro-intellectual property.
(49:39):
That would be great and I thinkthat should be doable.
I don't know.
Well, we have a few stragglersprobably.
We got some people who stillthink the world is flat, but you
know, I would say most everyone.
So the last one I'll give you Icould go on all day, but I'll
(50:01):
say our vision is that in lessthan five years from now, you
know, like within the nextcouple of years, that those
three pieces of legislation Imentioned restore, prevail and
PIRA are passed into law.
We fixed section 101, we fixedthe PTAB and we fixed
injunctions.
That would be a huge sea changefor the intellectual property
(50:25):
system in the US.
Speaker 1 (50:27):
RAOUL PAL's quite, quite a mission in five years.
Dave, that's good.
Good luck with that, or less.
One of my jobs on the podcastdave is to try and keep us to
time, and we're kind of right upagainst the clock now.
So, um, so, I'm I'm finishedwith all of my questions.
So I'm just going to say thankyou very much for coming on.
It's been an absolute pleasurehaving you on.
It's's been a delight.
But I know that Gwilym's got alittle closer question that he
(50:49):
wants to ask.
Speaker 2 (50:51):
So the context, dave, is that Lee normally has some
question that we're notexpecting to finish off, linked
somehow to the context of thecall, and he's given me the
(51:12):
lovely job of coming up with itthis time.
And I was actually going to say, going back to the fun,
exciting knowledge of just howmany US presidents you've hung
out with, lee, I'll start withyou and Dave, you're going to
have to find someone else foryour answer.
But, ok, famous people you'vemet and you can't mention
somebody you've alreadymentioned in the podcast it
can't be that bloke.
Speaker 1 (51:25):
Who told you you can't sing in a lift?
Uh, morrissey, yeah, I can'tmention.
Speaker 2 (51:28):
Oh, no, no, I can't mention morrissey another one we
need, we need another one, weneed another one bob galdorf
would be a biggie, obviously atthe time, at the time when bob
galdorf was god, um.
Speaker 1 (51:40):
So this was back in my years working in further
education policy, when bob wasthe kind of keynote speaker at a
big conference dinner thing andended up being on my table, sat
next to me he's.
He's a great person to havedinner with, bob yeldof, um,
because he is every bit theperson that you see on the
screen.
He did just, doesn't stop,doesn't stop swearing, doesn't
stop being really, really loud,doesn't stop waving his arms
(52:02):
around soup, soup, goingeverywhere.
That was quite a fun time and,uh.
So, if I'm allowed to william,it would be um, the the recently
departed, uh, his royalhighness, um, the duke of
edinburgh, so, um, prince philip, yeah, but who I've also had
dinner with and and who also hassome interesting mannerisms at
dinner.
So, for example, he, he stoodup and unbuttoned his coat and
(52:25):
had his tie kept straight underhis coat by a big nappy pin.
So I'll give you those two okay, over to you, dave.
Speaker 2 (52:36):
So you've obviously done three presidents.
It was a pretty impressivestart.
Uh, other, go name anotherfamous person in any, any walk
of your lives.
Speaker 3 (52:46):
Yeah, I think of a few Nobel Prize winners that
I've been fortunate to spendtime with, and a number of years
ago we had one from NYU, justdown in lower Manhattan, who had
come up with the economic whatis Nobel Prize for an economic
(53:08):
theory about innovation,spillover effects and the
importance of strong innovationincentives, and had him come
speak here about AI.
Actually, this is, you know,around 2016 or so, before I was
what it is now, was what it isnow, and that was pretty
(53:31):
inspiring because I gave him theobjective of you know, help us
envision what the right IPsystem should be to protect data
.
And he said you know,recognizing the data is
non-rivalrous.
You should have verylightweight protections for it,
and I thought that it soundedobvious once he explained it,
but beforehand it was anythingbut obvious, so that would be my
(53:53):
example.
Speaker 1 (53:55):
So, gwilym, you know how this works.
You don't get away with it.
You post a question, so youbetter have the best answer.
To finish with, Well, I didn't.
Speaker 2 (54:03):
Lee's better at this than me, though, because he
always makes sure he's got areally good answer to his
question.
I actually haven't got a verygood one at all.
Daniel Craig once looked at me,but it does tie in with James
Bond, so there we go.
Speaker 1 (54:15):
Daniel Craig.
Was he wearing his budgiesparklers at the time or was he
properly clothed?
Speaker 2 (54:20):
He was on an aeroplane and he looked like he
did look very cool.
He looked very cool indeed.
There we go.
That's all I got.
That's all I got mate.
Speaker 1 (54:27):
That's sad.
That's sad mate.
Oh, dave, thank you so much forjoining us.
I hope you've enjoyed being onthe podcast as much as we've
loved having you on.
It's been a real pleasure.
As Gwilym and I were talkingabout in the chat, we did some
really heavy stuff there andhopefully this is going to get
sort of great reviews from ourlisteners, who need to leave
(54:48):
those reviews on the podcastingplatform of their choice so that
other people can find thepodcast.
Speaker 3 (54:53):
Yeah, guys, thanks for having me on Lee.
Great to see you.
Great, as always, funconversation.
Speaker 1 (54:58):
Cheers, dave.
That's a wrap, thank you.
Popular Podcasts
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Follow now to get the latest episodes of Dateline NBC completely free, or subscribe to Dateline Premium for ad-free listening and exclusive bonus content: DatelinePremium.com
24/7 News: The Latest
The latest news in 4 minutes updated every hour, every day.
Therapy Gecko
An unlicensed lizard psychologist travels the universe talking to strangers about absolutely nothing. TO CALL THE GECKO: follow me on https://www.twitch.tv/lyleforever to get a notification for when I am taking calls. I am usually live Mondays, Wednesdays, and Fridays but lately a lot of other times too. I am a gecko.