WEBVTT - Stephen King Copyright Victory and Patent Death Squad 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brusso from Bloomberg Radio 0:00:13.080 --> 0:00:18.320 the thousands of General issues. The Gunslingers were nights. There's 0:00:18.360 --> 0:00:20.360 want to protect us from the coming of the Dark 0:00:21.920 --> 0:00:24.759 Roland to Shane, the last gun Slinger, a member of 0:00:24.760 --> 0:00:27.800 a nightly order, is locked in an eternal battle with 0:00:27.880 --> 0:00:30.080 the Man in Black in its quest to reach the 0:00:30.160 --> 0:00:34.760 Dark Tower. The tower protects both on walks. If it falls, 0:00:35.120 --> 0:00:38.800 al will be unleashed to Shane is the protagonist of 0:00:38.840 --> 0:00:42.560 Stephen King's Magnum Opus, The Dark Tower series and the movie. 0:00:42.880 --> 0:00:46.320 In seventeen, King was sued by the copyright holder of 0:00:46.320 --> 0:00:49.800 a nineteen seventies comic book, The Rook, for ripping off 0:00:49.840 --> 0:00:53.040 elements of its hero to create his famous Gun Slinger. 0:00:53.360 --> 0:00:56.240 Four years later, the Eleventh Circuit Court of Appeals has 0:00:56.280 --> 0:00:59.880 affirmed the lower court ruling, tossing out the lawsuit. Join 0:01:00.040 --> 0:01:03.800 me as intellectual property litigator Terence ross A partnered caton 0:01:03.920 --> 0:01:07.360 Uten Rosenman. Tell us about the issue here, Terry June. 0:01:07.400 --> 0:01:12.240 The issue revolves around two different literary works built Dubai 0:01:12.520 --> 0:01:15.000 in the late seventies and eighties wrote a comic book 0:01:15.040 --> 0:01:19.039 series called The Rook with a character as the hero 0:01:19.360 --> 0:01:22.640 of those comics by the name of Reston Dane, who 0:01:22.720 --> 0:01:27.000 traveled through time and fought various villain Stephen King published 0:01:27.000 --> 0:01:31.520 a series of novels starting around going into two thousand 0:01:31.480 --> 0:01:36.480 and ten called The Dark Power Series, which featured a 0:01:36.480 --> 0:01:40.200 anti hero by the name of Roland Duchaine, and he 0:01:40.319 --> 0:01:43.840 also time traveled, but as part of a quest to 0:01:44.080 --> 0:01:46.880 find this dark power that is in the title of 0:01:46.880 --> 0:01:52.560 the work and based upon certain broad similarities between the 0:01:52.600 --> 0:01:56.960 two characters. The nephew of the now deceased Bill Dubai, 0:01:57.400 --> 0:02:01.080 author of The Rook, brought a copyright infringement lawsuit again 0:02:01.160 --> 0:02:05.080 Stephen King, his publisher, and various media companies based on 0:02:05.160 --> 0:02:08.880 alleged infringement of this rest and Dame character in The 0:02:08.960 --> 0:02:12.840 Rook by Stephen King and his character Roland to shame. 0:02:13.320 --> 0:02:16.279 Seems like it took a while to bring this lawsuit 0:02:16.960 --> 0:02:23.400 thirty five years exact, and I, certainly, as a long 0:02:23.520 --> 0:02:29.280 time observer of copyright litigation, always wonder when I see 0:02:29.720 --> 0:02:34.760 that sort of lengthy delay in bringing an infringement lawsuit. 0:02:35.280 --> 0:02:40.280 Certainly you would have fought. Given the prominent uh Stephen 0:02:40.400 --> 0:02:43.960 King's works in general and the Dark Power series of novels, 0:02:44.000 --> 0:02:49.440 in particular that Bill Deby, the actual creator of the 0:02:49.520 --> 0:02:53.359 Rook comic book series, would during his lifetime have noticed 0:02:53.680 --> 0:02:57.120 that there were the similarities, and it's only after his 0:02:57.200 --> 0:03:00.680 death when, in effect, his inheritors sort of come up 0:03:00.720 --> 0:03:05.560 with this alleged similarity. The Copyright Act provides, believe it's 0:03:05.560 --> 0:03:09.799 not tony, a three year statute of limitation. Unfortunately, a 0:03:09.880 --> 0:03:12.959 Supreme Court in the Raging Bull case the movie a 0:03:13.000 --> 0:03:16.200 couple of years ago sort of viscerated that three year 0:03:16.200 --> 0:03:20.400 statute of limitations by saying, well, it depends upon when 0:03:20.880 --> 0:03:24.800 the actual discovery the infringement occurs. In various other things 0:03:24.800 --> 0:03:28.359 that sort of thrown the statute of limitations for copyright 0:03:28.360 --> 0:03:33.640 infringement into disarray. So, according to the plaintiffs here, there 0:03:33.639 --> 0:03:36.720 are a lot of similarities between the main characters. They're 0:03:36.840 --> 0:03:40.320 Nightly heritage, traveling back in time to save a boy 0:03:40.320 --> 0:03:45.880 who becomes a gun slinger, birds as companions, interaction with towers, 0:03:45.960 --> 0:03:51.160 western attire, fictionalized Alamo history, and knife wielding. So that 0:03:51.280 --> 0:03:54.640 sounds like a lot when you sort of added up. Yeah, 0:03:54.720 --> 0:03:58.400 sure does on its face. The important thing to remember 0:03:58.440 --> 0:04:03.000 about this case is that the only infringement allegations are 0:04:03.000 --> 0:04:07.600 related to taking the character of Rest and Dane from 0:04:07.640 --> 0:04:12.119 the Rook and essentially creating a substantially similar character called 0:04:12.200 --> 0:04:14.920 Roland of Shame in the Dark Power series novels. So 0:04:14.960 --> 0:04:19.320 it's limited to the issue what we call literary character copyright. 0:04:19.880 --> 0:04:24.679 And in order to obtain a copyright in a literary character, 0:04:25.240 --> 0:04:29.400 you have to go beyond sort of broad images that 0:04:29.440 --> 0:04:32.720 would be typically associated with for example, any World War 0:04:32.760 --> 0:04:36.160 two American hero fighting in Europe, he would be fighting Germans, 0:04:36.160 --> 0:04:39.200 he would be fighting Nazise, you would see swast because, etcetera. 0:04:39.480 --> 0:04:42.520 It's got to be something far more specifics that earn 0:04:42.640 --> 0:04:45.760 you a copyright and the character. And the other part 0:04:45.760 --> 0:04:47.479 of it is that the courts always say this. In 0:04:47.520 --> 0:04:49.840 this court, the Eleventh Circuits set it here is you've 0:04:49.880 --> 0:04:53.120 got to ignore sort of random similarity. The fact that 0:04:53.160 --> 0:04:56.799 they both carry at night is truly irrelevant. And indeed 0:04:56.920 --> 0:05:00.440 the court's cautions you can't just look at a series 0:05:00.480 --> 0:05:04.240 of individual, perhaps coincidental similarity. You've got to look at 0:05:04.279 --> 0:05:08.920 the overall totality of the elements. See what the overall 0:05:09.040 --> 0:05:13.560 impression or image that's conveyed by each compute character and 0:05:13.600 --> 0:05:16.440 here it seems as if the image and the impression 0:05:16.520 --> 0:05:21.000 conveyed are totally different. To Shane is really a very 0:05:21.080 --> 0:05:25.240 dark character. The Eleventh Circuit went so far as to 0:05:25.560 --> 0:05:28.680 characterize him as an anti hero, which I believe is 0:05:28.720 --> 0:05:32.479 accurate from read many of these works myself. He is 0:05:32.520 --> 0:05:37.640 somebody who's not particularly moral. He is perfectly content sacrificing 0:05:37.720 --> 0:05:40.920 his ally in pursuit of his goals, and he's a 0:05:41.040 --> 0:05:45.880 very introspective character. He worries about how much evil he 0:05:45.920 --> 0:05:48.800 has done. He suffers quite a bit through the series 0:05:48.960 --> 0:05:52.920 of these novels, and the quest to find the Dark Power, 0:05:53.320 --> 0:05:56.960 which is somehow related to the time space continuum, is 0:05:57.000 --> 0:06:00.040 also played out in an interior quest to sort of 0:06:00.120 --> 0:06:02.799 beam himself and become a better person. Now, you contrast 0:06:02.880 --> 0:06:06.200 that with the character in The rook rest In Dame, 0:06:06.520 --> 0:06:09.719 who is almost in parton the pont A comic book 0:06:09.800 --> 0:06:15.520 caricature of a typical hero. He's handsome, he's courageous, he 0:06:15.839 --> 0:06:19.120 always does the right thing. He fights them villains just 0:06:19.200 --> 0:06:21.440 sort of randomly, and yes he does time travel to 0:06:21.520 --> 0:06:23.880 fight them, but it's just sort of a good versus evil. 0:06:24.120 --> 0:06:28.440 It's a very different image the traditional American view of 0:06:28.480 --> 0:06:33.840 a literary hero versus the more modern anti hero image 0:06:34.120 --> 0:06:37.159 that you see in The Dark Power. Now, how important 0:06:37.320 --> 0:06:41.680 was it that King's manuscript for The Dark Tower pre 0:06:41.839 --> 0:06:46.760 dated the Rooks publication and also he started working on 0:06:46.839 --> 0:06:53.159 it apparently in yes, and this is important fact. The 0:06:53.279 --> 0:06:57.080 Rook comic book series I just said the character first 0:06:57.120 --> 0:07:01.159 appeared in a nineteen seventy of It or so, and 0:07:01.200 --> 0:07:04.760 then became a recurring comic book series in the late 0:07:04.839 --> 0:07:09.360 seventies and early eighties, Whereas there was substantial proof that 0:07:09.440 --> 0:07:13.640 Stephen King at least was journaling about his character ruling 0:07:13.720 --> 0:07:16.360 to Shane and what would become the Dark Power series 0:07:16.400 --> 0:07:20.000 of novels as early as nineteen seventies. The court was 0:07:20.120 --> 0:07:24.040 careful not to go off on that issue that was 0:07:24.080 --> 0:07:26.400 not the strict basis of ruling. And there's a good 0:07:26.440 --> 0:07:29.240 reason for that, because that would be an entirely fact 0:07:29.360 --> 0:07:33.200 based determination, and facts have to be determined in better 0:07:33.280 --> 0:07:36.520 court by a jury. And here the district court decided 0:07:36.560 --> 0:07:40.040 the case on summary judgment before it got to a jury. 0:07:40.360 --> 0:07:42.240 And it did that and said it was entitled to 0:07:42.280 --> 0:07:45.160 decide as on summary judgments and not in payama jury 0:07:45.360 --> 0:07:48.360 because as a matter of law, not fact, but as 0:07:48.400 --> 0:07:51.560 a matter of law, King and the other defendants were 0:07:51.720 --> 0:07:55.600 entitled to a judgment simply based on the lack of 0:07:55.720 --> 0:08:01.240 copyright ability of most of this, supposedly in stringing elements 0:08:01.240 --> 0:08:04.560 that were shared by the characters. The court consider some 0:08:04.720 --> 0:08:08.360 of the evidence that Stephen King put in, then I 0:08:08.360 --> 0:08:12.520 think he had some notes from an assistant. So evening, 0:08:12.520 --> 0:08:16.760 the defendants put in a phenomenal amount of evidence in 0:08:16.920 --> 0:08:19.360 support of its summer judgment motion. I think I saw 0:08:19.400 --> 0:08:22.520 at one point with forty four thousand pages. Now, this 0:08:22.640 --> 0:08:26.600 included each of the novels, obviously, and even contents right 0:08:26.720 --> 0:08:30.320 long novels, but it also included a summary of all 0:08:30.320 --> 0:08:33.679 those pages that was prepared by one of his assistants, 0:08:34.040 --> 0:08:36.120 so that the court wouldn't have to read off fourth 0:08:36.120 --> 0:08:39.480 thousand pages. The appellate court said that that was permissible 0:08:39.559 --> 0:08:42.599 under federal rules. Summaries of evidence of complicated evidence, of 0:08:42.679 --> 0:08:45.560 byments evidence are always allowed in federal courts. It's simply 0:08:45.600 --> 0:08:47.760 a way of helping a fact finder or the court 0:08:48.320 --> 0:08:51.520 get way through every thing given their busy docutans. More importantly, 0:08:51.520 --> 0:08:54.480 in what I found very interesting is that King and 0:08:54.520 --> 0:08:58.679 the defendants submitted an expert report by the author of 0:08:58.720 --> 0:09:02.600 the Act the Future Movies, who read all the work 0:09:03.240 --> 0:09:08.080 and you know, as an author himself time traveling characters, 0:09:08.240 --> 0:09:11.520 gave his opinion that the characters weren't similar. I found 0:09:11.559 --> 0:09:14.720 that sort of an interesting approach that is permitted in 0:09:14.800 --> 0:09:18.520 copyright cases. At the summer judgment stage, Terry, what was 0:09:18.559 --> 0:09:22.960 the rationale of the Eleventh Circuit's decision? So, due to 0:09:23.000 --> 0:09:28.640 the principal rationale for the Eleventh Circuits, affirmation of District 0:09:28.679 --> 0:09:32.080 Court was based on a finding that these several similar 0:09:32.080 --> 0:09:36.520 elements between the characters constituted nothing more than scenes off fair. 0:09:36.880 --> 0:09:40.240 Scenes are fair are not allowed to be copyrighted under 0:09:40.240 --> 0:09:43.720 our Copyright Act. They are essentially the sorts of common 0:09:43.840 --> 0:09:47.920 themes or characters or settings that are just indispensable to 0:09:48.360 --> 0:09:54.520 any treatment of a certain time period or type of event. So, 0:09:54.640 --> 0:10:00.319 if you're doing a book about the um the West 0:10:01.160 --> 0:10:03.599 and how the West was run, one, you're going to 0:10:03.720 --> 0:10:06.720 have gunfighters, You're going to have everybody walking around with 0:10:06.760 --> 0:10:09.640 a Colt forty five on their hips, you have people 0:10:09.640 --> 0:10:12.680 wearing cowboy hats. You're gonna have dance all girls. You're 0:10:12.679 --> 0:10:16.000 gonna have saloon and and the fact that it works 0:10:16.360 --> 0:10:19.600 has any of those elements in it, UM does not 0:10:19.679 --> 0:10:22.600 allow for those works to be copyrighted, m for those 0:10:22.800 --> 0:10:25.680 elements to be copyrighted in the work, and and and 0:10:26.120 --> 0:10:29.040 those elements are free to be used by by any 0:10:29.679 --> 0:10:34.280 creator who is doing a piece on the Western frontier 0:10:34.400 --> 0:10:37.760 day and and and the court here do you want 0:10:37.760 --> 0:10:40.360 a circuitstan You know, you look at a lot of 0:10:40.400 --> 0:10:45.839 these purportedly similar elements, and they're just common to what 0:10:45.880 --> 0:10:49.400 you The use of knives, well, lots of people use knives. 0:10:49.920 --> 0:10:53.319 You don't get a monopoly on a character using knives. 0:10:54.040 --> 0:10:57.959 They they they time travel. There are lots of characters 0:10:57.960 --> 0:11:01.080 you time travel. You don't get a man comply through 0:11:01.120 --> 0:11:05.320 copyright law on on time travel. Um. They wear western 0:11:05.400 --> 0:11:11.360 garbsny appropriate that the type of tramp time traveling you're doing, 0:11:11.520 --> 0:11:14.920 you don't get a monopoly on on wearing western garb. 0:11:15.440 --> 0:11:18.520 And so each of the individual elements, and you mentioned this, 0:11:18.640 --> 0:11:20.080 there seemed to be a lot of them, but when 0:11:20.120 --> 0:11:23.640 you actually take them apart, but they are nothing more 0:11:23.720 --> 0:11:27.199 than sort of the common incidents of the scene that 0:11:27.280 --> 0:11:30.040 you would expect to see for these types of work. 0:11:31.120 --> 0:11:34.040 I don't know how many times Stephen King has been 0:11:34.080 --> 0:11:37.720 sued for copyright infringement. I mean, he's the best selling author. 0:11:38.240 --> 0:11:41.600 And after the lower court ruling here, he asked for 0:11:41.800 --> 0:11:45.359 one point seven million dollars for fending off the litigation, 0:11:45.920 --> 0:11:49.720 saying copyright litigation isn't a lottery and he shouldn't be 0:11:49.760 --> 0:11:54.400 treated as a punching bag selling author. And after the 0:11:54.440 --> 0:11:58.440 initial the lower court ruling here, he asked for one 0:11:58.480 --> 0:12:03.920 point seven million dollars for sending off the litigation, saying 0:12:03.960 --> 0:12:08.240 copyright litigation isn't a lottery and he shouldn't be treated 0:12:08.280 --> 0:12:12.640 as a punching bag. It's true, and I have seen 0:12:13.000 --> 0:12:19.120 in other cases not involving Stephen King, attempts to use 0:12:19.160 --> 0:12:22.280 the fact that you've you've been sued for copyright infringement 0:12:22.280 --> 0:12:24.720 in the past, has some sort of evidence that you 0:12:24.800 --> 0:12:27.560 did it in the present UM that ed Shearing case. 0:12:27.640 --> 0:12:31.400 We're seeing that happen UM now in New York courts. 0:12:33.080 --> 0:12:37.520 I think it should be entirely disregarded by course UM. 0:12:37.679 --> 0:12:40.040 The fact that someone has been sued in the past 0:12:40.160 --> 0:12:45.880 and found not libel for infringement should be irrelevant. UM. 0:12:46.559 --> 0:12:51.880 I attribute this in general to the overligigious nature h 0:12:52.200 --> 0:12:56.439 copyright these days, and more specifically to the great success 0:12:56.480 --> 0:13:00.920 than notoriety that Stephen King has up paid UM. You know, 0:13:01.120 --> 0:13:03.840 Jesse James used to say, we rocked banks because that's 0:13:03.840 --> 0:13:08.680 where the money is now. UM. Copyright plainists tend to 0:13:08.800 --> 0:13:14.360 chase after UM authors and songwriters and other creators who 0:13:14.360 --> 0:13:18.680 have been successful UH and who have managed through their 0:13:18.720 --> 0:13:24.080 hard work, innovation and creativity to obtain great amounts of money. 0:13:25.520 --> 0:13:29.079 It makes no sense to go after UH sported and 0:13:29.160 --> 0:13:32.520 pringer who has been unsuccessful and has no money to 0:13:32.520 --> 0:13:35.800 pay a judgment? Right? Do you know what happened to that? 0:13:36.640 --> 0:13:40.559 The way this typically works is that the district court 0:13:41.559 --> 0:13:46.400 UM will put off a decision on attorneys seed until 0:13:46.880 --> 0:13:51.000 the issue of liability is settled for once and for all. So, 0:13:51.120 --> 0:13:54.720 knowing that this was going up to the Eleventh Circuit, UM, 0:13:55.440 --> 0:13:57.400 I assume that the district courts that I'm not going 0:13:57.440 --> 0:13:59.120 to do any extra work on this. I'll wait to 0:13:59.160 --> 0:14:04.080 see UH the Eleventh Circuit firms UH, and then the 0:14:03.760 --> 0:14:08.120 UH motion for attorney's fees UM will be considered. The 0:14:08.160 --> 0:14:13.120 Copyright Act does expressly allow for an award of attorney 0:14:13.200 --> 0:14:19.200 spees to a prevailing party UM to the extent that 0:14:19.600 --> 0:14:24.040 the claim of copyright infringement or the manner in which 0:14:24.160 --> 0:14:29.120 the claim was prosecuted litigated in court is somehow unreasonable, 0:14:29.600 --> 0:14:32.080 but it is in the discretion of the district court. 0:14:32.640 --> 0:14:36.160 And my own experience litigating these cases of behalf of 0:14:36.200 --> 0:14:39.960 defendants across the country is that, for whatever reason, district 0:14:40.000 --> 0:14:44.360 court judges tend to be reluctant to award attorneys fees 0:14:44.680 --> 0:14:49.160 in copyright cases unless it is an absolute fraud upon 0:14:49.160 --> 0:14:53.080 the court that's being perpetrated. Now, another point is this 0:14:53.160 --> 0:14:57.480 is the Eleventh Circuit. When we've talked before about copyright cases, 0:14:57.520 --> 0:15:00.440 they're usually in the Second Circuit or the Ninth Circuit. 0:15:01.080 --> 0:15:04.360 How did the Eleventh Circuit get in this, And that's 0:15:04.360 --> 0:15:11.280 a great question. Um. Apparently the nominal plaintiffs, the nephew 0:15:12.000 --> 0:15:19.480 of the author, the rook Eric Dubai, is a resident there. Um. 0:15:19.680 --> 0:15:27.480 Copyright lawsuit can generally be brought most district courts in 0:15:27.520 --> 0:15:31.880 the nation if the work is broadly distributed, and I'm 0:15:31.920 --> 0:15:38.000 sure Stephen King's Dark Power series and the graphic books 0:15:38.040 --> 0:15:41.840 that followed in the movie that followed, or um distributed 0:15:41.880 --> 0:15:46.880 in Florida, and so you get this unusual circumstance um. 0:15:47.120 --> 0:15:51.520 As we've discussed in the past, the nature of the 0:15:51.560 --> 0:15:55.520 industry that the copyright arises out of typically drives the 0:15:55.600 --> 0:15:59.600 locusts bird lawsuit. So you see books and publishing industry 0:15:59.640 --> 0:16:02.040 heavily based in New York City. You see a lot 0:16:02.040 --> 0:16:07.160 of those cases there, country Western Um and motown and 0:16:07.440 --> 0:16:10.040 wrap you see often in the Sixth Circuit because both 0:16:10.120 --> 0:16:12.960 Nashville and Detroit are in that sixth Circuit. And you say, 0:16:13.040 --> 0:16:17.920 see movies and other types of recordings often in southern 0:16:18.000 --> 0:16:20.480 California and the Ninth Circuit because that's where they're loka. 0:16:20.680 --> 0:16:23.040 So this is very unusual. But I will say this, 0:16:23.120 --> 0:16:26.520 the Lemon Circuit have history of copyright cases. It did 0:16:26.560 --> 0:16:29.400 not have to draw heavily upon the Second Circuit or 0:16:29.480 --> 0:16:32.560 Ninth Circuit law um to render this decision, which is 0:16:32.600 --> 0:16:36.040 interesting in and of itself. Thanks Terry. That's Terence Ross 0:16:36.080 --> 0:16:40.760 of Captain Eugen Rosenman. It's been dubbed the patent death 0:16:40.800 --> 0:16:44.920 Squad because it's invalidated more than two thousand patents and 0:16:45.000 --> 0:16:48.720 in a constitutional clash being closely watched by the nation's 0:16:48.760 --> 0:16:52.840 tech companies. At least five of the courts conservative justices 0:16:53.120 --> 0:16:55.720 seemed to indicate they might curb the powers of the 0:16:55.760 --> 0:16:58.920 patent Trial and Appeal Board. Here are justice is Brett 0:16:59.000 --> 0:17:03.640 Kavanaugh and Neil Gore such These are multimillions, sometimes billion 0:17:03.680 --> 0:17:08.280 dollar decisions being made, not by someone who's accountable in 0:17:08.280 --> 0:17:12.800 the usual way that the appointments clause demands. And my 0:17:12.880 --> 0:17:15.960 question was focused on supervision. If the president disagrees with 0:17:16.000 --> 0:17:19.880 the decision, or one of his designees down the chain 0:17:19.960 --> 0:17:23.800 of dependence disagrees with the decision, there's no remedy that 0:17:24.200 --> 0:17:27.760 the president has correct joining me is Susan Decker, Bloomberg 0:17:27.760 --> 0:17:31.119 News patent reporter. Susan start by telling us about the 0:17:31.160 --> 0:17:34.919 patent death squad. So the patent death squad of folks 0:17:34.960 --> 0:17:36.880 who don't like it, call it um. There was a 0:17:36.880 --> 0:17:40.119 sweeping overhaul of patent law back in two thousand and 0:17:40.160 --> 0:17:45.080 eleven that creates the specific adversarial procedure. So to say, 0:17:45.119 --> 0:17:47.560 for instance, you get sued and you think that a 0:17:47.640 --> 0:17:50.240 patent shouldn't have been issued in the first place. You 0:17:50.280 --> 0:17:52.080 can fight in court, but you can also go back 0:17:52.080 --> 0:17:54.240 to the patent office and say, hey, patent office, you 0:17:54.320 --> 0:17:57.239 got it wrong. And some type of procedure has been 0:17:57.280 --> 0:18:01.120 around for many decades, but this is a typically a trial. 0:18:01.200 --> 0:18:03.159 It was supposed to be an alternative to a trial, 0:18:03.200 --> 0:18:07.040 so it's much more formal. It's basically old re examination 0:18:07.080 --> 0:18:09.760 as they called it on Steroid. There's an initial review 0:18:09.880 --> 0:18:12.080 saying yeah, we think we might have gotten something wrong. 0:18:12.280 --> 0:18:14.320 Then they have to do a trial and issue a 0:18:14.320 --> 0:18:17.679 decision within one year. So it's very very fast tracked procedure. 0:18:18.280 --> 0:18:21.159 And because it's kind of self selecting, they do have 0:18:21.200 --> 0:18:23.760 a very high what they referred to as a kill rate, 0:18:24.119 --> 0:18:26.800 meaning a patent are part of a patent is deemed invalid. 0:18:27.280 --> 0:18:30.520 Have this case involving the patent death Squad get to 0:18:30.560 --> 0:18:33.399 the Supreme Court. So in this case, what happened was 0:18:33.520 --> 0:18:36.120 our Threax, which is a patent owner of a long 0:18:36.200 --> 0:18:39.600 standing battle with Smith and nephew over medical devices, had 0:18:39.760 --> 0:18:43.080 one of its patents invalidated at the PTAB that it's 0:18:43.080 --> 0:18:45.560 called patent trial on the field board. And they went 0:18:45.600 --> 0:18:48.119 to the Federal Circuit, the nation's top patent court, and 0:18:48.119 --> 0:18:51.479 they said, these people shouldn't have even been hearing these cases. 0:18:51.600 --> 0:18:53.600 If they're going to be judges that are tossing out 0:18:53.640 --> 0:18:58.159 already issued patents, then they should be presidentially appointed officers. 0:18:58.200 --> 0:19:01.240 They shouldn't be, you know, the Path and Office director 0:19:01.320 --> 0:19:04.520 of pointing over two hundred judges and them having the 0:19:04.600 --> 0:19:08.440 final say on these patents that we thought were already 0:19:08.480 --> 0:19:11.680 good to go. So the question is are those judges 0:19:12.280 --> 0:19:17.080 constitutionally appointed, Are they in fact inferior officers, meaning that 0:19:17.160 --> 0:19:20.600 they work for the director and their subject to his rules, 0:19:20.960 --> 0:19:23.680 or are they so independent they have so much authority 0:19:23.720 --> 0:19:26.119 to invalidate patents that there are people that have to 0:19:26.160 --> 0:19:29.119 go through this Senate confirmation process, which of course is 0:19:29.200 --> 0:19:31.560 very lengthy, and there's over two hundreds so it would 0:19:31.560 --> 0:19:35.080 take a long time. So during the oral arguments, what 0:19:35.280 --> 0:19:40.560 kind of concerns or questions did you hear from the justices. Well, 0:19:40.600 --> 0:19:42.640 one of the things that seemed that they were kind 0:19:42.680 --> 0:19:47.480 of angling towards yes, in fact, these are principal officers 0:19:47.480 --> 0:19:50.879 that they should be presidentially appointed. But several of the 0:19:50.960 --> 0:19:54.080 justices that seem to be leaning towards saying that this 0:19:54.160 --> 0:20:00.160 is unconstitutional seem to also say, well, they don't set policy, 0:20:00.160 --> 0:20:04.360 and in fact, if you have their decisions reviewable by 0:20:04.400 --> 0:20:07.640 the Patent Office Director, then that would solve the problem 0:20:07.720 --> 0:20:11.879 that normally these judges would be considered inferior officers except 0:20:11.960 --> 0:20:15.920 for this one role that they have on invalidating patents. 0:20:15.960 --> 0:20:18.720 And if you have the Patent Office director having the 0:20:18.760 --> 0:20:21.960 authority to overturn them, which he doesn't have right now, 0:20:22.400 --> 0:20:25.400 that that would solve the problem. So could they come 0:20:25.480 --> 0:20:28.600 up with a very narrow finding that would rule in 0:20:28.680 --> 0:20:32.560 fact that these judges were unconstitutional, but provide a remedy 0:20:32.680 --> 0:20:36.560 that doesn't cause disruption? So was there any Q and 0:20:36.640 --> 0:20:40.320 a any exchange between a justice and a lawyer that 0:20:40.440 --> 0:20:44.920 struck you? Well, they did seem to be to spend 0:20:44.920 --> 0:20:47.920 a lot more time on an administrative law, and they 0:20:47.920 --> 0:20:51.159 seem to be kind of concerned about what are the 0:20:51.240 --> 0:20:55.880 implications for this, What would happen? Could they rule one 0:20:55.920 --> 0:20:59.320 way and just throw havoc all over the place, or 0:20:59.640 --> 0:21:03.240 could come up with a very narrow finding that would 0:21:03.320 --> 0:21:06.879 rule in fact that these judges were on constitutional, but 0:21:07.200 --> 0:21:11.320 provide a remedy that doesn't cause disruption. And so there's 0:21:11.359 --> 0:21:13.960 a lot of discussion about what can we do, what 0:21:14.080 --> 0:21:19.520 can't we do differentiating the patent review judges from some 0:21:20.240 --> 0:21:23.920 roles and other agencies, and and concern about if they 0:21:24.000 --> 0:21:27.639 rule something very narrow for the patent Office would that 0:21:27.800 --> 0:21:30.679 kind of cause havoc with other agencies as well? There 0:21:30.760 --> 0:21:35.480 was a wide ranging hearing um. They were trying to 0:21:35.480 --> 0:21:38.560 give it kind of at a ten thousand foot view 0:21:38.720 --> 0:21:41.280 of what does it mean to be a principal officer 0:21:41.440 --> 0:21:45.000 versus an interior officer? And then on a more narrow side, 0:21:45.480 --> 0:21:48.159 what doesn't mean about the Patent Office because they have 0:21:48.880 --> 0:21:52.760 some kind of unique rules and unique policies that have 0:21:52.920 --> 0:21:56.440 been around for even predating the creation of the Patent 0:21:56.440 --> 0:21:59.400 Trial on Appeal board. How did the Federal Circuit, which 0:21:59.440 --> 0:22:03.520 handles rule on this. The Federal Circuit had ruled that 0:22:03.600 --> 0:22:07.680 they were unconstitutionally appointed, but said that the way of 0:22:07.760 --> 0:22:10.879 dealing with this issue is merely to take away some 0:22:11.000 --> 0:22:13.480 of the civil service rights of these judges to essentially 0:22:13.480 --> 0:22:17.320 make them out well employees that are more easily fired 0:22:17.359 --> 0:22:20.520 by the director instead of civil service rules. It didn't 0:22:20.560 --> 0:22:24.960 appear that the Supreme Court justices really were willing to 0:22:25.000 --> 0:22:27.239 go along with it. And of course we know that 0:22:27.240 --> 0:22:29.840 the Supreme Court only takes Federal Circuit cases when they 0:22:29.840 --> 0:22:32.560 want to overturn the Federal Circuit. It's not like you have, 0:22:32.760 --> 0:22:35.159 you know, conflict between the circuits. It's just the Federal 0:22:35.160 --> 0:22:37.400 Circuit right, and they have a very bad record before 0:22:37.480 --> 0:22:41.199 the Supreme Court. They do they do, so we assume 0:22:41.280 --> 0:22:43.919 that they're going to somehow, let's say that the Federal 0:22:43.960 --> 0:22:46.600 Circuit got it wrong. But are they going to say 0:22:46.600 --> 0:22:48.840 that the Federal Circuit got it wrong in determining that 0:22:48.880 --> 0:22:51.640 they were principal officers or are they going to say 0:22:51.840 --> 0:22:53.800 that the Federal Circuit got it wrong in terms of 0:22:53.800 --> 0:22:58.160 the remedy And it seemed like they were leaning towards 0:22:58.560 --> 0:23:00.919 the Federal Circuit got it wrong on the remedy and 0:23:01.000 --> 0:23:07.440 we have a different remedy that would solve the problem. Apple, Intel, Cisco, Microsoft, Oracle, Samsung, 0:23:08.040 --> 0:23:10.920 who are they backing? All of the tech companies are 0:23:11.000 --> 0:23:14.040 saying that these are inferior officers as they say that 0:23:14.160 --> 0:23:16.800 these guys are totally on the up and up, that 0:23:16.920 --> 0:23:20.800 their rules are appropriate and do not disturb the p 0:23:20.960 --> 0:23:23.359 TAP because of the fact that they're within the Patent 0:23:23.400 --> 0:23:25.879 Office and they're saying, did we get it right or 0:23:25.920 --> 0:23:28.520 did we get it wrong? And that's the role that 0:23:28.560 --> 0:23:30.800 they have, and that there's nothing wrong with the Patent 0:23:30.800 --> 0:23:35.199 Office doing that. That the director sets the policy and 0:23:35.240 --> 0:23:38.560 they're following the policy. But they are looking at what 0:23:38.720 --> 0:23:41.800 the agency does. They point out that in fact, there 0:23:41.840 --> 0:23:44.920 have been procedures to review issued patents that have been 0:23:44.920 --> 0:23:49.400 going on forever and nobody's ever complained until now, mainly 0:23:49.480 --> 0:23:53.040 because this is such a fast track proceedings that does 0:23:53.560 --> 0:23:58.120 have a relatively high rate of invalidation. Now, where does 0:23:58.160 --> 0:24:02.320 the Biden administration stand. Well, the Lustener General has come 0:24:02.359 --> 0:24:05.320 down on the idea that they too are worried about 0:24:05.400 --> 0:24:09.000 disturbing this procedure and disturbing this board that has been 0:24:09.000 --> 0:24:12.240 around since two thousands twelve that was specifically set up 0:24:12.600 --> 0:24:15.200 because there were concerns that the Patent Office had been 0:24:15.200 --> 0:24:19.480 issuing too many bad patents, that they had been basically 0:24:19.520 --> 0:24:22.320 too easy on some of these applications. So they are 0:24:22.400 --> 0:24:25.359 two are very concerned of what's going to happen if 0:24:25.400 --> 0:24:28.960 the if the Supreme Court says no, these are unconstitutionally 0:24:29.000 --> 0:24:32.240 appointed officers and they have to go through principle, who 0:24:32.280 --> 0:24:34.679 have to go through Senate confirmation, and it's gonna just 0:24:35.040 --> 0:24:36.960 disrupt the whole system. And they do not want that 0:24:37.000 --> 0:24:40.440 system disrupted if they just rule that, you know, these 0:24:40.520 --> 0:24:45.440 judges are principal officers. They need presidential appointment and Senate confirmation. 0:24:45.720 --> 0:24:48.639 Would that shut down the whole thing? Well, it's certainly 0:24:48.680 --> 0:24:51.560 what a lot of patent owners would like, UM, and 0:24:51.760 --> 0:24:53.560 it does seem that they would. It would shut it 0:24:53.600 --> 0:24:56.399 down at least tempor early. There's there was one a 0:24:56.480 --> 0:24:59.040 note that there was like seven and fifty cases pending 0:24:59.080 --> 0:25:02.080 before the the board right now. Um. But it would 0:25:02.080 --> 0:25:04.880 shut it down. But but many people point out that 0:25:05.200 --> 0:25:08.840 it would merely take one sentence from Congress to change 0:25:08.840 --> 0:25:11.679 it in light of you know, similar to what they 0:25:11.720 --> 0:25:15.159 did in December with the trademark law, and just merely 0:25:15.240 --> 0:25:18.760 saying that the director has the authority to reconsider, modify, 0:25:18.840 --> 0:25:22.159