Innovation, Creativity, and IP Law

• Author: Mark K. Dickson
• Position: Mark K. Dickson is chair of the ABA Section of Intellectual Property Law. As solo practitioner and principal of Phase M Legal in San Mateo, California, he specializes in portfolio development and evaluation, risk assessment, licensing, and litigation avoidance for a wide range of technologies, including plant patent matters. He can be reached...
• Pages: 3-3

Published in Landslide® magazine, Volume 11, Number 2, a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2018 by the American Bar Association. Reproduced with permission. All rights reserved.

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Perspective

By Mark K. Dickson

Advances in autonomous vehicles, electronics, drug

design, and medical treatment are just a few exam-

ples of the ways that innovation drives growth and

improvement in the world and brings creative solutions to

everyday problems. As creativity’s lawyers, those of us in the

intellectual property profession work to champion the encour-

agement and protection of innovation.

The United States has been a world leader in innovation

for decades, meeting challenges in the world marketplace

and pushing our economy forward to new heights. Innova-

tion fuels entire sectors of our economy—accelerating at such

rapid pace and so accepted as a part of life that we have taken

it for granted. This past summer, the U.S. Patent and Trade-

mark Of ce issued the 10 millionth patent. It took 200 years

to reach the  rst  ve million patents in the United States in

1991 but only 27 years to reach the next  ve million.

Ensuring that this kind of pace and world leadership con-

tinues takes constant effort so that innovation is encouraged,

maintained, and well protected with strong and fair laws regu-

lating competition, particularly intellectual property laws. To

address related issues, the ABA Section of Intellectual Property

Law (ABA-IPL) recently joined forces with the ABA Section

of Antitrust Law in preparing comments to the Federal Trade

Commission (FTC). This combined effort was in advance

of an upcoming series of public hearings on whether broad-

based changes in the economy, evolving business practices,

new technologies, or international developments might require

adjustments to competition and consumer protection enforce-

ment law, enforcement priorities, and policy.1

Our Section was especially interested in Topic 8 from the FTC,

“The role of intellectual property and competition policy in pro-

moting innovation.” With respect to this topic, the FTC stated:

Of particular interest to the Commission is comment from

intellectual property owners, licensors, and licensees and aca-

demic, legal and policy experts, on, and economic analysis

of: (a) the adoption and utilization of novel business practices

(beyond those addressed in the Commission’s prior guidance

and actions) with respect to obtaining or enforcing intellec-

tual property rights, where such practices may be inconsistent

with the antitrust laws; (b) identi cation of contemporary pat-

ent doctrine that substantially affects innovation and raises the

greatest challenges for competition policy; (c) evaluation of

intellectual property litigation in competitive effects analysis;

and (d) evaluation of ef ciencies and entry considerations in

technology markets in merger analysis.

The ABA-IPL Section convened a task force to coordi-

nate with the ABA’s Antitrust Section on responding to the

FTC request for comment, speci cally on Topic 8. Our  nal

joint comments were approved by ABA-IPL Council dur-

ing the ABA Annual Meeting in Chicago in August.2 These

comments provide a neutral statement of the issues and sug-

gest some lines of inquiry for the FTC to pursue as part of

its hearings on patent-related issues, antitrust trademark and

copyright interfaces, and emerging issues relating to pharma-

ceutical patents, among other matters.

Innovation doesn’t just happen, and it won’t keep hap-

pening, without a healthy foundation of competition law and

intellectual property protection. This includes a strong pat-

ent system, healthy trademark and copyright laws, and sound

protection for trade secrets and other forms of intellectual

property law.

Part of what we do in our Section involves advocating for

change and improvement in intellectual property law. And our

work is signi cantly enhanced by the bene t of collaboration

with other entities within the ABA, like the Section of Anti-

trust Law. It’s easy to highlight inadequacies or unfairness in

intellectual property protection and other laws but not nearly

as easy to  nd and promote consensus for change. That is

why we study, review, collaborate with other ABA entities,

and propose policy and new legislation. As members, you can

be proud of the work we do on your behalf for the bene t of

our profession. We invite all of you who are interested to join

us in our advocacy efforts so you can add your voices and let

them be heard. n

Endnotes

1. The FTC has set forth its enforcement positions in prior public

documents, including the joint FTC and Department of Justice 2017

Antitrust Guidelines for the Licensing of Intellectual Property and

2007 Antitrust Enforcement and Intellectual Property Rights report.

The FTC has also engaged in substantial competition advocacy

regarding the legal and policy regime related to intellectual property

rights, including its three “IP” reports: the 2003 To Promote Innova-

tion report, the 2011 Evolving IP Marketplace report, and the 2016

Patent Assertion Entity Activity report.

2. Comments to the Federal Trade Commission in Advance

of the FTC Hearings on Competition and Consumer Pro-

tection in the 21st Century, Project Number P181201 (Aug.

20, 2018), https://www.americanbar.org/content/dam/aba/

administrative/intellectual_property_law/advocacy/Final_SAL_

SIPL_Comments_2018_FTC_Hearings_Final.authcheckdam.pdf.

Mark K. Dickson is chair of the ABA Section of Intellectual Property Law. As solo practitioner and principal of Phase M Legal in San Mateo,

California, he specializes in portfolio development and evaluation, risk assessment, licensing, and litigation avoidance for a wide range of

technologies, including plant patent matters. He can be reached at mdickson@phasem.com.

Innovation, Creativity, and IP Law