In 2020, very few things can be described as certain or stable, given the COVID-19 pandemic. But that applies twofold for the world of patents, which has always contended with an unpredictable landscape.
“The first reason for all the uncertainty is that the patent system is a pretty complicated system,” says Manny Schecter, who, as IBM’s chief patent counsel since 2009, has helped fortify the company’s patent portfolio while aggressively developing its intellectual property profile. “There’s ample opportunity for there to be points where the law may not be clear or regulations appear to conflict, or at least can be interpreted very differently and need to be resolved. We also have a pretty highly charged and polarized patent environment these days, with folks taking opposite views.”
Schecter explains that such polarization often means that when people argue about which way a law should be rewritten or interpreted, they can exploit the air of uncertainty surrounding patent law to leverage the argument to their advantage. “That perpetuates the uncertainty rather than necessarily trying to resolve it,” he adds. “It’s for the benefit of all patent system constituents to try to reduce that uncertainty, because not only does clarity help us improve our ability to give advice to our clients, but it also enables the public to have a better understanding of the system.”
To combat such exploitation and temper the fog of ambiguity surrounding patents, Schecter works hard to educate the public about the nuances of patent law. “Many people are aware of the patent system, but they don’t have a very good understanding of it,” he notes.
Schecter approaches these efforts through direct methods, such as giving guest lectures at universities or writing op-eds, and through less direct methods, such as working on Stroke of Genius, a podcast run by the Education Foundation of the Intellectual Property Owners Association (IPO) that explores how intellectual property has benefited innovators and their innovations. Schecter currently serves as the IPO Education Foundation’s president. The IPO Education Foundation also presents the annual Inventor of the Year Award, which brings attention to IP. Other, more direct outlets include a website operated by the Center for Intellectual Property Understanding, which serves as a hub for all things IP.
“We try to build awareness and understanding about intellectual property and hope that it also leads to enough genuine interest such that people seek additional paths to learn more on their own,” Schecter says.
There are of course other factors contributing to the need for clarity surrounding IP law. Artificial intelligence and machine learning tend to be evergreen hot topics, and their relevance will only increase as AI technology continues to permeate nearly every facet of human life.
“AI has contributed to some of the uncertainty in the IP world because it’s a leading-edge technology, but the law at the time it was written wasn’t necessarily contemplating that,” Schecter says. “And there’s nothing wrong with that—that’s what you would expect. Intellectual property copes with emerging technologies all the time and has to be flexible enough to adapt to them. Sometimes that requires rewriting or adding provisions to the law. In that sense, AI has generated some uncertainty.”
Yet Schecter also believes that AI holds the promise for improved tools. “For intellectual property practitioners, AI can improve some of the things that we do. Prior art searching and translation tools, for example, some of which are good enough that we take them for granted, some of which are still themselves in an early stage of development. But artificial intelligence will help speed that development along and make those tools as robust as ever,” he says.
“It’s for the benefit of all patent system constituents to try to reduce that uncertainty, because not only does clarity help us improve our ability to give advice to our clients, but it also enables the public to have a better understanding of the system.”
Another force wreaking havoc on certainty for every industry is the aforementioned COVID-19 pandemic, which continues to hold whole swathes of the globe hostage. As the patent world is naturally comfortable with some level of uncertainty—and is quite attuned to digital and ergonomic innovations—Schecter acknowledges that he and his team at IBM were probably better prepared than most for this unprecedented situation.
“We’re an information technology company so working remotely is not that difficult,” he says. “But we have a team in Beijing that went into lockdown some months before most of the world did, since the pandemic seemingly emerged in China. And that caused me to begin asking questions of other parts of our team, not just the team in China.”
Schecter began asking members on his global team what they would need to do differently if the pandemic came their way. Though he was met with some resistance and denial initially, the team identified a few potential vulnerabilities and solved them before the pandemic hit other localities. And though they didn’t find a lot of exposure, he says they did learn something unexpected and valuable from Beijing—something that will likely be very handy in 2021.
“Not only did they go into lockdown months before the rest of the world, but they actually began coming out of their lockdown before some of us went into ours,” he says. “One of the things that we saw was that when our team was offered the option to return to the office, people were reluctant because it wasn’t clear to them that it was safe yet. So that has helped us foresee what that mentality would be like everywhere else.”