It's the Long Term That Counts

AuthorMark K. Dickson
PositionMark 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...
©2019. Published in Landslide®, Vol. 11, No. 5, May/June 2019, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or
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James Clear writes a newsletter on human behavior and teaches
a course called The Habits Academy for people interested in
eliminating bad habits and replacing them with a better frame-
work designed to achieve enhanced goals and improved results.
According to Clear, over the long haul, habits determine the per-
son you ultimately become, and, just like nancial interest, those
habits compound over time for long-term results.
These observations on forming good habits sound very famil-
iar to anyone who has been a parent. When my daughters were
growing up, I worried less about what they were doing at any
one moment than about what kind of person they were ulti-
mately becoming. As my own father told me, good habits build
good character, so I focused my concerns on nurturing my
daughters’ good habits and eliminating the bad. Good habits
would bring out their best qualities and inuence the person they
would become, not some dubious list of deeds and accomplish-
ments. They were human beings, I told them, not human doings.
Goals and results are important for setting direction, but sys-
tems and habits are the important keys for making progress.
“True long-term thinking is goalless thinking,” notes Clear.
“Goals are about winning this instance of a game. Systems are
about continuing to play the game.”1 It’s not the goal or result on
which we need to focus (although we need them as guideposts).
Instead, it’s the process behind the results—habits and systems
that naturally lead to a desired outcome—that is the more effec-
tive place to direct our time and energy for positive change.
These observations on habits and systems in human behav-
ior directly apply to our Section’s advocacy efforts to improve
intellectual property (IP) laws. Our committees spend substan-
tial time analyzing the results of IP litigation as we work to
ensure case outcomes that are fair and just. But the focus of our
efforts is on improving the process—the “habits and system”
of laws, regulations, and procedures—that the case decisions
are ultimately based on. Like goals, the outcomes of individ-
ual cases provide direction, but the process (habits and system)
used to arrive at that outcome forms the basis for deciding
other cases that follow. If we want to improve future results, we
must necessarily eliminate bad habits over the long term and
improve the system on which those future results depend.
The ABA-IPL Section doesn’t just focus on litigation results.
A big part of IP protection arises from the rules and regulations of
government agencies like the U.S. Patent and Trademark Ofce
(USPTO), the U.S. Copyright Ofce, and their foreign coun-
terparts. These agencies set the procedures for making routine
decisions on patent and trademark applications, and copyright reg-
istrations. Improving the process for those decisions depends on
changing the habits and system behind the agency rules and regu-
lations to ensure strong IP protection over time.
Our recent advocacy efforts reect our concern with improv-
ing the habits and system behind the laws, regulations, and
procedures that we depend on. We prepared a letter to the
Director of the USPTO commenting on newly issued guidance
for determining patent subject matter eligibility under § 101
of the Patent Act. Determining subject matter eligibility has
become a confused and muddled process—a collection of bad
habits one might say—in the wake of the U.S. Supreme Court’s
decisions in Alice2 and Mayo.3 The USPTO’s proposed guidance
and our related comments are part of the iterative process for
eliminating the collective bad habits under which those decisions
have been made so that patent applicants can better understand
how to apply the rules and regulations. Like developing a good
habit, this guidance will incrementally improve the quality of
issued patents, with fewer § 101 issues over the long term.
In similar fashion, we provided comments on new USPTO
guidance regarding enablement and written description issues
of functional claim language in patents under § 112. Our Sec-
tion worked with the Section of International Law to prepare
comments on proposed amendments to the China Patent Laws
covering patent damages for willful infringement among other
things. ABA-IPL successfully moved adoption of Section policy
through the ABA House of Delegates regarding fair use of copied
material under the copyright law. We passed Section policy that a
patentee is not precluded from recovery of lost prots for extrater-
ritorial acts that are related to a domestic infringement of a patent
by a presumption against extraterritorial application of U.S. pat-
ent law. We established additional policy for technical corrections
to §§ 119–120 of the Patent Act, and we sent a letter to the Com-
missioner of Trademarks regarding revisions to the examining
procedure to eliminate restriction of additional extensions of time
following the ling and refusal of a statement of use.
All these varied ABA-IPL Section advocacy initiatives meet
the criteria of forming good habits: one by one and with delib-
erate work and balanced thought and activity—leading to the
goal of better processes, better laws, and, ultimately, the best
IP system. There is still more to do. You should make it a habit
to join us and help to improve the long-term results. n
1. Clay Skipper, How to Kick Your Bad Habits (and Why That’s More
Important Than You Think), GQ (Oct. 21, 2018),
how-to-break-bad-habits; see also J C, A H: A E
& P W  B G H & B B O (2018).
2. Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347, 2354
3. Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S.
Ct. 1289, 1296–97 (2012).
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
By Mark K. Dickson
It’s the Long Term That Counts
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