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Section Task Forces,
Leaders Push for Positive Change
From the Chair
William L. LaFuze
Section Chair, 2004-2005
 The
Section continues to be hard at work and productive on many important
projects. I have just returned from the House of Delegates (HOD) meeting
at the ABA Midyear Meeting in Salt Lake City, Utah. At that meeting,
the House passed the Section’s resolution favoring the “first
inventor to file” principle, in contrast to the “first
to invent” system now in place. This important change was made
for two reasons. First, the “first inventor to file” system
is viewed by most as a best practice for the United States patent
system. Second, by changing to a “first inventor to file”
system, the United States moves one step closer to global harmonization
of patent laws. Section HOD delegate Don Dunner, along with Council
member Bob Armitage, deserve distinct praise for getting this resolution
passed in the House. Don and Bob have worked tirelessly over the last
several months educating other Sections in the ABA about the first
inventor to file system, and convincing several sections to co-sponsor
the resolution. A vigorous debate occurred in the House on this issue
before it was passed. Speaking in favor of the resolution were Don
Dunner, Council member and former Director of the PTO Todd Dickinson,
and Immediate Past President of the AIPLA Rick Nydegger. Others at
the House debate who were prepared to speak but did not have the opportunity
were Bob Armitage, Jack Goldstein, Scott Partridge, Doug Henderson,
and myself. Interestingly, there were no intellectual property attorneys
among those who spoke against the first inventor to file resolution.
Thanks again to Don Dunner, Bob Armitage, and the rest of the group.
In late January, the Section completed its annual midwinter leadership
meeting in Miami. There the officers, Council, and committee chairs
met for two days to exchange a detailed account of the work with which
each committee and task force has been involved. This was a wonderful
opportunity for all members of the Section leadership to get to know
each other better, learn about the status of projects throughout the
Section, and get comments and constructive criticism from others.
I feel very privileged to serve the bar with such a highly talented
and motivated group of quality lawyers! Thus far, with the year half
over, it has been an absolute joy to work with such dedicated volunteers
who are donating their time to improve the law and the profession.
Also at the leadership meeting in Miami, two very informative and
special presentations were given. The first presentation was by a
group composed of Don Martens, Bob Armitage, and Gary Griswold. These
three legal experts reported to the Section leaders on the report
and analysis of two task forces set up to study numerous recommendations
for patent law revision and improvement by the Federal Trade Commission
and the National Academy of Sciences. These organizations have proposed
sweeping changes to our patent law that, if implemented, would materially
change the law in many important respects. Issues addressed in these
reports include post-grant opposition, increased funding and improved
operations of the PTO, willful infringement, best mode, inequitable
conduct, first inventor to file, first sale and public use bars, and
others. Practitioners who wish to take a peek at major possible changes
in our patent law are well advised to review the NAS and FTC reports,
and the responses of the Section in its task force reports, which
are expected to be available online in early March at www.abanet.org/intelprop/executive.html.
Additionally at the leadership meeting, the Section task force that
has studied the Induce Act and Grokster issues gave a report.
This presentation was given by David Einhorn, Mark Litvak, Kate Spelman,
and Fred Koenigsberg. New technology continues to pose new issues
as to the extent of protection under our copyright law and enforcement
alternatives. As a sequel to the Napster litigation, the
Grokster case considered the legality of file-sharing and transfer
of copyrighted works in light of technology which moved would-be copyright
infringers one step further from the clear reach of copyright protection.
The Induce Act, which did not pass in the last Congress, would afford
copyright owners a broad form of enforcement by imposing liability
on those who create and commercialize new technologies used to manipulate
and transfer copyrighted works. A basic issue arises for technologies
that have both infringing and non-infringing uses. Consideration of
the issues involves determining the proper balance as a matter of
policy as to who should be liable for violations of copyright law
who are not direct infringers. The speakers gave the Section leadership
an in-depth education on the various issues raised by Grokster
and the Induce Act.
I recently appointed a task force headed by Chair-Elect Tony Figg
to study ABA governance issues and positions taken by the Section
Officers Council and a committee of the ABA. At issue is the proper
balance of the ABA House of Delegates, about 85 percent of which is
made up of delegates from the states, and of which only about 15 percent
is from ABA Sections. As recommended by the task force, the Council
recently endorsed – except for the issue of term limits –
the report and recommendations of the SOC.
I also appointed a task force on trademark dilution headed by Vice-Chair
Susan Montgomery. Upon recommendation of the task force at the Section
Council meeting in early February, the Section adopted six resolutions
on this issue and approved testimony that may be given by the Section
at upcoming hearings of the House Subcommittee on Intellectual Property.
In essence, the Section supports the amendment of the Federal Trademark
Dilution Act of 1995 to provide that questions of trademark dilution
should be resolved under the “likelihood of dilution”
standard.
Our 20th Annual Intellectual Property Law Conference will be held
in Arlington, Va., April 14-16, 2005. This program is jam-packed with
hot CLE topics you won’t want to miss, so register today at
www.abanet.org/intelprop/
spring2005. Also not to be missed, our Summer IPL Conference will
be held in San Francisco June 22-26 – just go to www.abanet.org/intelprop/
summer2005 for more information and to register.
Thanks again to our many leaders and volunteers who continue to make
this a productive and remarkable year for the Section.
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