Intellectual Property

3 Questions For Patent Maverick Erich Spangenberg

What does this patent superstar think will be on the IP horizon in 2018 and beyond?

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We are well into our second decade of an IP world where Erich Spangenberg plays an outsized role. There is no reason to think 2018 will be any different. Erich’s voice remains a vital one in the patent space — no matter which side of the divide you find yourself on as a patent-focused professional. As we welcome a new year, I could not think of anyone better to opine on the state of the patent market, and perhaps more importantly, where things may be headed in 2018 and beyond. As usual, I have added some brief commentary to Erich’s answers below, but have otherwise presented his answers as he provided them.

Immediately below are my written questions and Erich’s answers:

1. You are on record as saying that those hoping for a full patent market rebound in 2018 will likely find themselves disappointed, but that you personally looking at patent acquisition opportunities on behalf of your entities. Implicit in those statements is that while patent owners could continue to face rough seas in 2018, you have at least some optimism that it is a good time for savvy acquirers to strike while patent prices remain depressed. What underlies that optimism?

ES: It is depressing to think that 2017 might one day be referred to as the “good old days” for patents in the US — so in part it is optimism that prevents me from believing things are going to get worse.  Beyond the emotional hope, you do have politicians — like Senators Coons and Cotton and others — raising questions about property rights and have we gone too far with recent legislation like the AIA; Representative Goodlatte is retiring (do not let the door hit you on the way out on your way to what I am confident will be a meaningful payday as a consultant to the companies you were doing the bidding for); a new head of the USPTO (I am highly confident he will be better than his predecessor); and the legislative and regulatory threats that the large tech companies are facing in other areas will cause them to spend less time on patent issues and more time attempting to suppress other higher priority regulatory concerns.  Outside of the US, the EU is continuing its more balanced approach and the prospects for certain large tech companies to influence anti-patent legislation is extremely limited given their profile in the EU.  In China, I can’t wait for the day when the companies that are complaining today flip the narrative and start complaining that the Chinese patent system is too strong.   If I were US-focused, I might start to broaden my geographical perspective as for at least the next few years, this is going to be important.

GK: I agree with Erich that there are a confluence of factors pointing to the potential revitalization of the patent space in 2018 and onward. While Erich correctly highlights the importance of political changes in the US and the more welcoming climate patent owners often find in the EU and China, I would add that upcoming decisions such as Oil States (Supreme Court review of IPR constitutionality) will also contribute to a new patent landscape this year. In short, there is plenty to watch for and consider in the patent space going forward.

2. Your name is consistently linked with new initiatives in the patent monetization sphere, whether it is your much-publicized collaborations with Kyle Bass and Marathon Patents, or your more recent foray into a blockchain initiative. How important has that willingness to go where the market takes you been in terms of ensuring your longevity, relevance, and success in the IP arena?

ES:  I love the fact that the patent business is constantly changing — I get bored easily and would not have it any other way or I would go and do something else.   Most of us are not appointed for life and whether we know it or not, have very limited job security.  Twenty years ago, you made partner at a law firm or had a senior job in an IP group — you were set.  Today, this is simply no longer true.  You achieve job security by making yourself relevant.  The market is craving new and better solutions, and if your plan is to rely on doing more of the same, I wish you luck.  In the near future, this asset class is going to have a new group of managers and advances in blockchain, predictive analytics, and artificial intelligence are going to drastically change who is relevant and well-compensated in the IP space.  Highly compensated intermediaries — like lawyers and me — are at very high risk of being wiped out if we do not change our model.

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GK: As someone who knows firsthand about the opportunities one can generate by taking the entrepreneurial plunge in the patent world — even as a lawyer — I encourage everyone reading this to use Erich’s comments as an invitation to take stock regarding their career direction. The answers to what will be relevant in the patent future are definitely not obvious, but I can assure you that only those who invest in the struggle to help shape that future have any shot of finding them. At a minimum, it behooves us as lawyers to continue learning wherever possible, so that entire important business developments like increasing use of blockchain technology by financial institutions are not things we are naive or unschooled about.

3. Many of this column’s readers are patent lawyers who focus their practices on adversarial proceedings. Considering the depth and breadth of your exposure to patent litigators — whether they were lawyers you hired to represent one of your entities or those trying to keep their client’s money out of your hands — what qualities have you seen are most critical for outside counsel to possess in this field?

ES:  The number one thing I look for in litigation counsel is a great communicator.  Said another way, I look for lawyers who can take the complex and distill it down to something simple that a normal person can understand — like a judge who was a history major in college or a juror who has a very limited understanding of technology.  Of course, lawyers have to have a technical understanding and be able to go into the weeds — but most lawyers excel at this part.  We won many hearings and a few trials because the defense counsel did an outstanding job of making the complex even more complex. I have never believed that jurors like the better dressed or better joke telling (so fake) lawyer. I believe judges and jurors like the lawyer who helps them identify and understand the issues. I believe this way of communicating is a skill that can be developed with a bit of practice.  You will probably best learn it outside your law firm and by practicing in a mirror or with a friend who is not a lawyer.   

GK: In my view, Erich clearly identifies a critical skill that IP litigators must possess. But effective communication is not a skill that can be learned from a book, or even from formalistic training at your law firm. Rather, it is consistent practice — across a wide variety of real-world interactions — that will help hone one’s communication ability. I particularly like Erich’s identification of the need to have a trusted critic help you develop your communication skills. It can be a friend, spouse, child, or whoever — the most important thing is to practice, and make sure to solicit honest feedback along the way from someone who can help track your development.

My thanks to Erich for the insights and cooperation, and I wish him continued success and fulfillment with his varied IP-focused initiatives. It is always a privilege to hear from an important IP personality, especially one with such considered and well-articulated views on the challenges and opportunities for IP owners in today’s unsettled IP marketplace. I am always open to conducting interviews of this type with other IP thought leaders, so feel free to reach out if you have a compelling perspective to offer.

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Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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