It's the Long Term That Counts

• 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

©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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Perspective

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

Endnotes

1. Clay Skipper, How to Kick Your Bad Habits (and Why That’s More

Important Than You Think), GQ (Oct. 21, 2018), https://www.gq.com/story/

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

(2014).

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 mdickson@phasem.com.

By Mark K. Dickson

It’s the Long Term That Counts

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