“In his explanation of the origins of the IPWatchdog Masters™ Hall of Fame in 2022, Quinn said he wanted an IP Hall of Fame that included only ‘real IP professionals; people who mean something to me, people I want you to hear from, and people who have really impacted the IP community.’”
Following a panel that examined the international landscape for standard essential patents (SEPs), IPWatchdog’s Founder and CEO, Gene Quinn, and Chief Operating Officer, Renee Quinn, presented The Honorable Randall Rader with the IPWatchdog Masters™ Hall of Fame award and a sketched portrait to add to the Wall of Fame at IPWatchdog’s headquarters.
Judge Rader served as a circuit judge on the U.S. Court of Appeals for the Federal Circuit from 1990 through 2010, and as the court’s Chief Judge from 2010-2014. He has won numerous awards and now works an arbitrator, mediator and consultant with the Rader Group.
In his explanation of the origins of the IPWatchdog Masters™ Hall of Fame in 2022, Quinn said he wanted an IP Hall of Fame that included only “real IP professionals; people who mean something to me, people I want you to hear from, and people who have really impacted the IP community. People who not only contribute to the field, but who also help set the debate—real thought leaders and industry icons who take the time to participate.”
Rader is the seventh inductee into the Hall of Fame. The others include the Honorable Paul Michel, Retired Chief Judge of the U.S. Court of Appeals for the Federal Circuit (CAFC); Sherry Knowles of Knowles Intellectual Property Strategies; Phil Johnson, Chair of the Steering Committee for the Coalition for 21st Century Patent Reform and retired Senior Vice President, Intellectual Property Policy & Strategy of Johnson & Johnson’s Law Department; Bob Stoll, former USPTO Commissioner for Patents and currently Partner and Co-Chair of the IP Group at Faegre Drinker Biddle & Reath; the late Q. Todd Dickinson, who served as USPTO Director from 1999 to 2001 and who was inducted posthumously earlier this year; and Federal Circuit Judge Pauline Newman.
Rader participated on a panel with Otto Licks of Licks Attorneys in Brazil, Volkmar Henke of Bardehle Pagenberg in Germany, and Carlos Olarte of OlarteMoure in Colombia. The panel explored options for parties seeking fair, reasonable and non-discriminatory (FRAND) rates in SEP licensing negotiations, when many jurisdictions present challenges, particularly for innovator companies. Colombia, Brazil and Germany are emerging as some of the most favorable forums for such litigation, and Rader argued that arbitration has its own advantages.
“There are a lot of ways to get to the objective of that early favorable settlement,” Rader said. “Maybe the highest commendation for arbitration [when it comes to SEPs] is confidentiality,” he added. “All of this…can be off the record, and the final amounts can be off the record…. It gets you the result quickly and in a timely manner so the market can move forward.”
Ultimately, though, it will benefit parties to consider all the options. “A careful plan in advance to reach your goal will suggest you take more than one path,” Rader said.
‘The Courts Have Failed’
The SEP Masters™ Program kicked off on Monday with a panel featuring Retired CAFC Chief Judge Paul Michel, former USPTO Director David Kappos and Former International Trade Commission (ITC) Commissioner F. Scott Kieff. That panel addressed myths and realities of SEP implementation and licensing, such as the myth that SEP owners promise to license implementers or that patent owners get enormous windfalls when patented technology is adopted as a standard.
“The myth that SEP litigation is out of control is indeed a myth and it’s a falsehood,” said Kappos. The premise that it is out of control is at the root of recent regulatory actions that have been taken both in the United States and the European Union, he added, and it’s a narrative that feeds into some popular beliefs and leads to a presumption that something must be done.
Having looked at the data, however, Kappos said SEP cases brought by plaintiff patent holders are “a tiny little fraction; in most years [between 2000 and 2020], you can count the number of SEP cases literally on one hand, and in many years, you don’t need any fingers at all because the answer was zero. In the years where the numbers were a dozen or more, what the data showed was there was one company behind the majority of the litigation, either as the plaintiff or the defendant—that company? Apple.”
Michel commented that the courts have “badly failed” the patent system by destroying the balance of incentives, first by eliminating most injunctions via their implementation of the eBay decision, as well as their interpretation of other doctrines, including damages and obviousness law. “It was the responsibility of the courts to keep the system balanced and they failed,” Michel said.
Other panels held during the Fifth Annual Standards, Patents, & Competition program, a part of the IPWatchdog Masters™ series, examined global SEP policies; obstacles to reaching a FRAND license; determining a reasonable royalty rate; SEPs at the International Trade Commission, and more. The program concludes tomorrow with two more panelsas well as networking.
IPWatchdog’s next Masters™ series event, the Fourth Annual Patent Trial & Appeal Board (PTAB) program, will take place January 29-31.