Perspective

Perspective: It’s the Long Term That Counts

By Mark K. Dickson

©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 disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

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 framework designed to achieve enhanced goals and improved results. According to Clear, over the long haul, habits determine the person you ultimately become, and, just like financial interest, those habits compound over time for long-term results.

These observations on forming good habits sound very familiar 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 ultimately 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 influence the person they would become, not some dubious list of deeds and accomplishments. They were human beings, I told them, not human doings.

Goals and results are important for setting direction, but systems 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 effective place to direct our time and energy for positive change.

These observations on habits and systems in human behavior directly apply to our Section’s advocacy efforts to improve intellectual property (IP) laws. Our committees spend substantial 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 individual 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 Office (USPTO), the U.S. Copyright Office, and their foreign counterparts. These agencies set the procedures for making routine decisions on patent and trademark applications, and copyright registrations. Improving the process for those decisions depends on changing the habits and system behind the agency rules and regulations to ensure strong IP protection over time.

Our recent advocacy efforts reflect our concern with improving 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 Section 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 profits for extraterritorial acts that are related to a domestic infringement of a patent by a presumption against extraterritorial application of U.S. patent law. We established additional policy for technical corrections to §§ 119–120 of the Patent Act, and we sent a letter to the Commissioner of Trademarks regarding revisions to the examining procedure to eliminate restriction of additional extensions of time following the filing 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 deliberate 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.

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 James Clear, Atomic Habits: An Easy & Proven Way to Build Good Habits & Break Bad Ones (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).

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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.