The California-based counsel shares her views on the state of the IP environment in the US and how professionals can contribute to improvements, particularly in the patent field Angela Johnson joined Hewlett Packard Enterprise (HPE) in September 2012 as part of their new attorney programme and has since gained first-hand experience in a range of legal matters including those related to employment, commercial law, IP litigation and class action matters.
Professional development at HPE
After joining the programme, Johnson was assigned to HPE’s litigation team. It was during this time that she discovered her passion for patent law. Johnson says: “At that time, Cynthia Bright was the head of the IP litigation team. We had similar non-technical college backgrounds, which dispelled my misperception that all IP attorneys needed technical degrees.”
Under Bright’s leadership, Johnson says she learned a valuable lesson: “She always emphasised that her success in IP litigation was due to her willingness to roll up her sleeves and work hard to understand the technology and law. She encouraged me to do the same.”
Johnson then spent three years as part of the employment and commercial team at the company, where she handled fundamental elements of litigation such as discovery, drafting documents, taking depositions and leading mediations. Johnson joined the IP litigation team as a full-time counsel last year, focusing on patent litigation and collaborating with joint defence groups from other in-house departments on policy reform.
After four years at HPE, Johnson insists that her learning experience is by no means over, saying: “It can be difficult to translate what may be common terms in the IP or tech space into layman’s terms. As I continue to develop my expertise, I have to constantly remind myself to be comfortable with what I do not know and be comfortable with asking a lot of questions.”
Tackling patent issues in the technology industry
Johnson is particularly involved with patent litigation in the technology industry. She says: “One of the most interesting assignments I have had as IP litigation counsel has been determining whether HPE should join an amicus brief in the Halo/Stryker appeal before the Supreme Court.”
In preparation, Johnson recalls researching the history of both cases extensively, reading through the amicus briefs and speaking with other leaders in the technology industry about their positions. HPE joined an amicus brief with Intel and Medtronic which advocated for a continued use of the current Seagate standard.
Promoting positive change in IP |
As part of HPE’s office of the general counsel (OGC), Johnson said: “I was extremely lucky to have great mentors on the IP litigation team teach me the intricacies of patent law.” Now, Johnson serves on OGC internal committees and mentors junior attorneys in the new attorney programme. In her spare time, Johnson expresses a love for being outdoors, horseback riding and reading. Johnson leads both HPE’s outside counsel diversity subcommittee and Bay Area pro bono committee. She is also an advisory board member to OneJustice, a legal service providing pro bono legal training to lawyers serving under-represented communities. Johnson shares her thoughts on responsibility and leadership in the profession: “I think every attorney has an obligation to make sure that the legal profession is broadly represented by individuals from all walks of life. Simply put, the world benefits when we have policy makers and legal advocates coming to the table with different perspectives and who approach solutions in unique ways.” The topics of diversity and inclusion continue to drive conversation across a range of professions. In recent years, there has been a steady emergence of regulatory boards and task forces promoting diversity in IP, such as the USPTO’s Women in STEM initiative. “As lead of the committee, my goal is to find ways for HPE to have an impact on making our profession more diverse through our interactions and requirements of outside counsel,” Johnson says. She suggests: “The best way to achieve this range of thought is to have individuals with different backgrounds, different communities, religions, racial identity, gender identity, etcetera as part of the profession.” Johnson notes: “Although some firms do this better than others, there are still a lot of firms where individuals from under-represented groups are not given the same opportunities. In-house legal departments can do a lot to hold firms accountable for their practices.” |
Johnson says: “Going through the process taught me a lot about some of the concerns for the tech industry and helped me to understand the various positions that companies are taking in the patent law debate.”
The technology companies countered the petitioners’ calls to introduce a broader, totality-of-the-circumstances, standard for patent interpretation and harsher consequences for patent infringers. The amicus brief argued:
Returning to a totality-of-the-circumstances standard would also cause additional harms to the technology industry. The frequency of enhanced damage awards would inevitably increase; “demand letters” and litigation from patentees generally (including non-practicing entities) would also increase; and companies, fearful of the prospect of treble damages, would be forced to divert their research and development funds toward litigation and licensing costs.
IP litigation counsel must stay vigilant
As part of her role, Johnson manages outside counsel on patent litigation cases, working also on assertions and policy reform topics in-house. Reflecting on her experience as a patent lawyer, Johnson says: “Patent law is forever evolving. The pendulum is constantly swinging, and we have to understand where those trends are leading, how it impacts patent litigation broadly and how it ultimately impacts our respective companies.”
Johnson adds that “creating and maintaining a balanced patent system that promotes innovation and good, valid patents, while also ensuring that bad, low quality patents are not used to abuse the system and ultimately undermine its effectiveness” is one of the biggest challenges in patent law. She says: “There are three main US venues that address patent disputes – the ITC, PTO, and federal courts. IP litigation counsel in my position have to stay vigilant about understanding trends and the discourse around all three of these venues.”
The fight against patent trolls in the US
Since the Supreme Court’s eBay decision, which restricted injunctions in federal courts, the ITC has seen a sharp increase in patent litigation. The House of Representatives has recently reintroduced the Trade Protection Not Troll Protection Act to Congress, a bill to prevent abusive patent litigation by requiring complainants to have a product associated with the patent on sale in the US.
“Attempts to weaken the PTAB’s ability to do that are problematic. Cuozzo could have a significant negative impact on the PTAB proceedings, if the Supreme Court changes the construction standard or allows for reviewability of institution decisions.”
Johnson says: “HPE was heavily involved in advocating for ITC reform in order to limit patent trolls from bringing lawsuits in the ITC. However, patent trolls continue to reinvent ways to abuse the system, even though they have no actual domestic industry.”
She continues: “Reform is still needed to ensure that the ITC cannot be used as another venue for patent trolls to bring lawsuits to simply seek settlement based on the cost of litigation.”
While Johnson notes that “great strides were made with the American Invents Act (AIA) and other reform,” she says: “Patent trolls keep reinventing themselves and finding new methods to threaten lawsuits, seeking settlements based purely on the cost of litigation.”
Speaking on recent reform at the Patent Trial and Appeal Board (PTAB), Johnson says: “In general, I think the PTAB’s AIA proceedings are getting rid of bad, low quality patents, which is what is was designed to do. We should continue to have strong IPR process that help weed out the low quality patents.” She argues: “Attempts to weaken the PTAB’s ability to do that are problematic. Cuozzo could have a significant negative impact on the PTAB proceedings, if the Supreme Court changes the construction standard or allows for reviewability of institution decisions.”
The USPTO published amendments to the rules for PTAB trials, effective from May, which clarified that the PTAB will use the same claim construction standard as the district courts for patents due to expire during a proceeding, while using the broadest reasonable interpretation (BRI) for all other patents. But all eyes are now on the Supreme Court, which granted certiorari in Cuozzo on January 15 and is due to hear oral arguments this month.
