A Look Back at Patents, With Retired Professor John Allison

John Allison, professor of Business, Government, and Society, recently retired from a decades-long career at the McCombs School of Business.

Allison, who joined the McCombs faculty in 1972, says that after retiring he’ll continue work on a research project empirically examining decisions by judges on whether an asserted trademark merely describes a product or suggests something about that product. Such decisions have a major impact on a trademark owner’s ability to protect a mark and on the cost of securing that protection. Most of his work has concentrated on creating and analyzing data sets in the patent field.

At the 2018 Annual Conference of the Academy of Legal Studies in Business, Allison was the co-recipient of the distinguished career faculty award, the highest award given by the business law profession.

How has the patent field changed over the years?

We had the coming of patents on software programs. With the recognition in the 1980s and early 1990s that software can be patentable, and then with the dot-com boom in the late ’90s, there was this flood of internet-related patents. I did a number of studies, and the patent office granted quite a few of those patents that it never should have. I went on sort of a mission to argue — really successfully, ultimately — that even though there were a number of bad ones, the courts and the patent office shouldn’t make them harder to get or easier to invalidate in court.

What needs to change to improve patent law?

They need to make this area of law more coherent. By making it easier to invalidate these patents, it amounts to the court saying the Patent and Trademark Office should never have been granted them. The courts second-guess the patent office. It’s judicial review, but the way they go about it is highly flawed. There are better ways to do it, so I’m cautiously optimistic and really hopeful that, ultimately, the courts will do it the right way.

Do you have any key lessons you want your students to remember?

I try to emphasize critical thinking, and the law is a very good vehicle for that.

Be skeptical, look and think deeply, and don’t take things at face value. I hope that my students came away with their critical thinking skills at least slightly enhanced and a greater awareness of legal and regulatory issues. That way, they can prevent problems, rather than just trying to fix problems after they happen.