Ever wonder how those knockoff handbag vendors around the city can get away with selling counterfeit Gucci and Coach purses? Alan Fisch, cochair of Kaye Scholer’s intellectual-property practice and one of Washington’s top patent litigators, explains how they do it. He also chats about the increasing value of ideas, even in a tough economy, and the first-ever patent case in Dubai that he’s litigating.
Most people likely don’t think much about patents or the fact that most technologies we use include many of them. Can you break down the significance of the patent system?
Many consider our patent system to be the engine of American innovation. Patents cover a wide range of technologies that many would expect to be part of the patent system, such as pharmaceuticals and semiconductors, to things some people may not associate with the patent system, such as fishing lures and kitchen brooms. Inventors and companies, be they domestic or foreign, strive to obtain patent protection from the United States government, especially when new products are readied. For example, when Apple’s Steve Jobs first introduced the iPhone in 2007, he shared that the company had already filed more than 200 iPhone-related patent applications.
What’s the difference between a patent, a copyright, and a trademark?
Patents protect new ideas. For example, a patent could cover an item like an electrical connector or a way to do something such as testing for organic carbon in water. Copyrights protect original expressions. A copyright could cover a melody, the written word, or something in the visual arts. Trademarks protect those things that distinguish one good or service from its competition. So a trademark could be something such as the name Venetian for a casino, or a color such as pink for fiberglass insulation, or a shape such as the Nike swoosh.
So how do the street vendors around the city who sell knockoff designer handbags get away with it?
Fast feet. Seriously, intellectual-property piracy and counterfeiting remains a growing concern. Generally, our system of intellectual property obligates the owner to pursue enforcement on their own through the civil courts. While the government can at times become involved directly, the heavy legal lifting must be done by the intellectual-property owner. So when a knockoff handbag or a fake watch or a bootleg movie is on the street, it’s a real challenge for the harmed companies because they can’t rationally pursue every [vendor]. Many of these infringing items are made overseas, and many companies and the government work hard to prevent the bulk importation of infringing items. But as is evident, they can’t stop them all.
Even as the recession has affected most law practices in recent years, it seems like intellectual property has remained pretty steady. Why is that?
Some of the key building blocks in the present-day American economy are ideas, information, and creative expressions. Intellectual-property law governs the rights and responsibilities surrounding those building blocks. Intellectual-property legal needs have remained in high demand because the building blocks they protect have remained of high value even in the difficult economy.
You’re working on a pretty novel case in Dubai. Can you tells us about it?
We have a client that has been sued for patent infringement in the United Arab Emirates city-state of Dubai over a United States patent. The US Supreme Court has made clear that United States patent rights end at US borders. The case has continued on in Dubai despite this fact. It’s also an interesting case in that we understand that we are Dubai’s first ever patent-infringement case. I have now been to Dubai three times to advocate in the case. We’ve won at what would be considered our district-court level. We have won at the appellate-court level, and we are now in the Court of Cassation, which is Dubai’s equivalent of the Supreme Court. Briefs translated into Arabic have been filed, and we are waiting our turn before the court.
Has working on a case within Dubai’s court system changed your views on the American court system?
First, let me say that the people and legal system of Dubai have been welcoming, and we have made many new friends there. But when in an overseas legal system, be it Dubai or elsewhere, absence has made my heart grow fonder for our system. While our system is admittedly imperfect, from my vantage point, on the whole it remains the best one out there.