Intellectual Property

3 Questions For Patent Professor And Engineer, Saurabh Vishnubhakat

Are we ever going to see law schools require all students to take a survey IP course that touches on the basics of IP?

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As I’ve said before in earlier interviews on these pages, the younger wave of IP-focused academics continues to deserve our attention. This week’s interviewee, Saurabh Vishnubhakat, is an associate professor at the Texas A&M University School of Law.  He also holds a joint appointment in Texas A&M’s Dwight Look College of Engineering and is a fellow of the Duke Law Center for Innovation Policy. Professor Vishnubhakat writes and teaches in patent law, administrative law, and civil procedure, particularly from an empirical perspective.  His scholarship has been cited in federal appellate and trial court opinions, agency reports, and nearly two dozen Supreme Court briefs across 10 cases. Before coming to Texas A&M, he was a faculty fellow at Duke Law School and served in the United States Patent and Trademark Office, where he advised that agency’s first two chief economists.  He received his J.D. and LL.M. degrees from the Franklin Pierce Law Center (now the University of New Hampshire Franklin Pierce School of Law) and his B.S. degree in biochemistry from the Georgia Institute of Technology. He is admitted to the bars of Texas, Illinois, the Federal Circuit, and the Supreme Court. This past year, he was tenured and promoted to full professor. As you will see below, Professor Vishnubhakat has some interesting views on the interplay between agencies and the courts as they relate to IP law, as well as how best to prepare the lawyers of tomorrow for practice in IP and beyond. As usual, I have added some brief commentary to the answers below, but have otherwise presented his answers as he provided them.

Immediately below are my written questions and Professor Vishnubhakat’s answers:

1.  Your scholarship is heavily focused on the intersection between administrative agencies and the courts. What fascinates you about this topic, which some IP practitioners who focus on one or the other will only encounter sporadically in their practices?

My fascination with that intersection is twofold.  It starts with a basic tension of administrative law, that a society should build institutions with expertise on complex subjects and then entrust them with enormous and consolidated power — but that, in order to constrain that power, society should also make those institutions democratically accountable.  How power (or expertise, for that matter) responds to questions criticisms from the public is a rich source of interesting questions.

The other side of my fascination is that history looms large over the court-agency interface in IP law, especially patent law.  Even those who work only on one or the other side of the interface have some sense of how obscure and insular IP law can often seem to outsiders.  Many of the reasons for that perception are historical, and working at the USPTO during a time of significant transition showed me how difficult and even messy it can be to shake loose from history.

I had the good fortune to confront these questions from the start of my career.  My first job out of law school was at the U.S. Patent & Trademark Office. It was just as the America Invents Act was being negotiated, enacted, and implemented — and it was the USPTO that did the implementing.  The years I spent as an agency advisor were an incredible inside look at that process. It was like going from reading books about mechanical engineering to watching a group of experts design and build an airplane.

GK: Not everyone, even in academia, needs to follow the traditional route of working for a law firm or clerking right out of law school to develop an interesting perspective on IP issues. As a patent litigator, I am well aware of the disruption in our industry engendered by the AIA. To have seen how that statute was implemented at the USPTO firsthand must have been a fantastic experience.

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SV: Absolutely.  Particularly as to entering academia (which was a longtime hope of mine), one aspect of the AIA that some often overlook is the range of studies and reports that Congress requested from the USPTO.  These were a useful ongoing exercise for the agency to gather information, especially from academic research. And for me as I worked on many of them, they were a great springboard for staying connected to what the various segments of the IP community care about.

2. One of the things that I have enjoyed following your Twitter feed (@emptydoors) is your willingness to comment on PTAB happenings as well as Game of Thrones. Should more academics be using social media to share their thoughts in this way?

Thanks for following!  In general, yes — I think more academics should use social media in this way.  Academia is a spectrum of fields that range from the very theoretical to the very practical, and within those fields, there are scholars who work variously on more theoretical or more practical questions.  The more practical a given field or a given research question, the more society can benefit from learning about it. That is an important obligation of academia to society, and we can do better to fulfill it.

Now a couple of caveats.  First, to use social media effectively, I think it helps to use it at least somewhat regularly, and for that, it helps if the activity itself is fun.  If it feels like a chore or comes across as a stiff piece of academic marketing, its value to everyone (including the scholar) goes down. The examples you note of PTAB happenings and Game of Thrones are apt for me:  in both, I enjoy the subject matter and have studied it deeply. In both, I hold strong views and strong disagreements with others. And in both, I have struggled at times to understand what the heck just happened. That’s all part of the fun.

Second, social media succeeds for an academic when it helps summarize and introduce work, but it is easy in a format like Twitter to turn reductive and risk having one’s work be misinterpreted.  To guard against this, I try regularly to include links to fuller analysis and often to tweet a significant idea across a thread (even a short one). This is all to signal that a larger conversation is important — indeed, is the whole point.  Incidentally, breaking up an idea into its components and premises like that can be as clarifying for me as for my audience.

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GK: IP Twitter remains a thought-provoking and engaging marketplace, populated by a wide variety of interesting personalities. I applaud Saurabh’s reasoned approach to using the platform and hope that other academics continue to interact in the IP community on social media. Especially for those of us whose time in law school is best measured by counting back in decades, rather than years, exposure to current academics on social media is a lifeline to what is happening in schools today.

SV: And the lifeline runs both ways.  The best gift I get from tweeting is when colleagues, friends, and even strangers introduce me to a new or controversial issue because they think I might be interested.

3. In your view, are we ever going to see law schools require all students to take a survey IP course that touches on the basics of IP? Or at least replace some of the boring stuff in 1L Property classes to discuss IP?

I doubt it will become a widespread requirement.  A good number of schools disfavor having many required courses at all.  Meanwhile, schools that do favor required courses tend to do so because they want to guide their students more closely, and that leads to prioritizing subjects that are tested on the bar exam.  None of this is a recipe for a mandatory IP survey course.

That said, offering an IP survey is of course something that most schools already do, and their students are better off for it.  IP issues are so pervasive in the technology, culture, and commerce of modern society that most lawyers, at one time or another, will at least have to recognize an IP issue when they see it, ask intelligent questions, and know where to turn.

As for 1L courses, I actually favor leaving them largely as they are to cover the fundamentals, boring as that can be.  In my patent law course, for example, I deliberately draw connections to basic 1L ideas from civil procedure (which I also teach) to explain issues like jurisdiction and standing, tort law to explain infringement and remedies, contract law to explain licensing and inventorship, and of course property law for a host of issues.

That is often where my students begin to see that law is cumulative, and their study of law should be cumulative, too.  The idea that a set of basic legal concepts and legal tools can be combined and elaborated to solve a wide array of problems is a powerful one — especially when they come to IP law with those concepts and tools already in hand.  The more traditional 1L curriculum is well suited for that preparation.

GK: Even though I have been a proponent of IP literacy for all lawyers — and all productive citizens for that matter — it is hard to argue with the good professor’s measured and thoughtful take on this issue. There is a balancing act when it comes to legal education, with a limited amount of time to shape the thinking of law students so that they emerge from law school prepared for the challenges of legal practice. I particularly like Saurabh’s approach of linking back to 1L concepts in his IP survey classes as a means of giving his students a strong foundation for IP practice.

SV: Thanks very much, Gaston.

My thanks to Professor Vishnubhakat for the insights and cooperation, and I wish him continued success and fulfillment with his academic career. It is always a privilege to hear from an up-and-coming IP personality, especially one with such a big role to play in developing the next generation of IP lawyers as well as shaping our current thinking around patents. 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.

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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