W. Keith Robinson

Keith W. Robinson

Full-time faculty

Altshuler Distinguished Teaching Professor, Co-Director of the Tsai Center for Law, Science and Innovation and Associate Professor of Law

"Through the patent and trademark clinic, our students will learn substantive skills and have the opportunity to expand their understanding of intellectual property law. Further, the clinic will provide the law school with the ability to strengthen its relationship with the growing start-up and entrepreneurial community in Dallas."

Biography

Professor Robinson teaches and writes in the areas of property, intellectual property, patent law and technology law. His current research focuses on the impact of judicial decisions and administrative patent policy on emerging technology. Thomson Reuters has twice recognized Professor Robinson’s articles on patent infringement, originally published in the American University Law Review and the Texas Intellectual Property Law Journal, as the best in intellectual property law.  He has written and lectured on patent lawsuit avoidance, the patenting of business methods, divided infringement and patent challenges facing emerging technologies such as the Internet of Things, virtual reality, and artificial intelligence.

Professor Robinson practiced law at Foley and Lardner LLP as a member of the electronics practice group in Washington, D.C.  He assisted clients in various areas of patent law including counseling through negotiations, opinions, prosecution and strategic IP issues including evaluating emerging technology.

Professor Robinson has counseled clients in a variety of technical areas including computer software, consumer electronics, display technology, signal processing, telecommunications, wireless communications, network architecture, application specific electronic devices, semiconductor devices and manufacturing, data mining, search technology, vehicle safety systems, RFID technology, Internet applications and business methods.

Before practicing law, Professor Robinson was a technology consultant for Ernst & Young LLP and Cap Gemini Ernst & Young LLC. He counseled clients on software development processes, developed customized software solutions and designed and implemented web application architectures.

Professor Robinson is a graduate of Duke University School of Law (J.D., cum laude, 2004). He holds a degree in electrical engineering from the Duke University Pratt School of Engineering (B.S. 1999). While attending law school, Professor Robinson served in the Duke Law Community Enterprise Clinic, where he provided counseling on copyright and trademark protection and advised entrepreneurial clients on business formation.

Professor Robinson is admitted to practice in the District of Columbia, Virginia, and before the U.S. Patent and Trademark Office.

Areas of Expertise

  • Patent Law
  • Intellectual Property
  • Law and Technology

Education

B.S.E., Duke University School of Engineering
J.D., cum laude,  Duke University School of Law

Courses

Property
Intellectual Property
Intellectual Property & Business Organizations
Technology, Innovation and Law—Designing Legal Apps


 

Books

Acing Intellectual Property: A Checklist Approach to Solving Intellectual Property Problems, 1st ed. (West Academic 2018).

Articles

Artificial Intelligence and Access to the Patent System __ Nev. L.J. __ (forthcoming 2021).

Using Interactive Inventions, 69 DePaul Law Review 95 (2020).

Emerging Technologies Challenging Current Legal Paradigms, 19 Minn. J. of Law, Sci. & Tech. 355 (2018) (with Joshua T. Smith)
 
Trade Secrets, Safe Harbors, and International Trade, 20 SMU Sci. & Tech. L. Rev. 177 (2017).

Patent Assertion Entities, Reasonable Royalties, and a Restitution Perspective, 36 Rev. Litig. Brief 46 (2016).

Awarding Attorney Fees and Deterring “Patent Trolls”, 20 Lewis & Clark L. Rev. 281 (2016).
 
Economic Theory, Divided Infringement and Enforcing Interactive Patents, 67 Florida L. Rev. 1961 (2016).

Only a Pawn in the Game: Rethinking Induced Patent Infringement, 32 Santa Clara H. Tech. L. J. 1 (Lead article) (2015).

Recent Developments in Intellectual Property Law‑A 2014 Retrospective, 31 Santa Clara H. Tech. L. J. 527 (2015) (with David O. Taylor).

Patent Law Challenges for the Internet of Things, 15 Wake Forest J. Bus. & Intell. Prop. L. 655 (2015) (invited symposium contribution).

Protecting America’s Innovators - Combating the Decline of Patents Granted to Small Entities, 88 St. John’s L. Rev. 379 (2014).

A Case Study of Federal Circuit Policy Making, 66 SMU L. Rev. 579 (2013).

No “Direction” Home: An Alternative Approach to Joint Infringement, 62 Am. U. L. Rev. 59 (2012).

Ramifications of Joint Infringement Theory on Emerging Technology Patents, 18 Tex. Intell. Prop. L. J. 335 (Lead Article) (2010).

Other Publications

USPTO Issues Supplementary Examination Guidelines Explaining the Requirement for Clarity in Patent Claims, Science|Business, March 14, 2011 (with R.F. Henschel, partner Foley & Lardner LLP).

Current and Potential Methods to Undermine a Competitor's U.S. Patent Application, 81 Patent, Trademark, & Copyright Journal 770, (2011) (with M. Aamir Haq).

Presentations

Invited Speaker, Artificial Intelligence and Access to the Patent System, CHICAGO-KENT AND LOYOLA INTELLECTUAL PROPERTY COLLOQUIUM (January 26, 2021).

Invited Speaker, Artificial Intelligence and Access to the Patent System, EXAMINING INSTITUTIONAL STRUCTURES: RACE, BUSINESS, the University of Iowa College of Law, Innovation, Business & Law Center (September 10, 2020).  

Invited Panelist, Inter Partes Review hosted by the Coalition Against Patent Abuse (July 23, 2020).

Invited Panelist, What Should Law Schools be Doing Now?, 5TH ANNUAL TI:GER INNOVATION CONFERENCE—FUTURE OF THE LEGAL INDUSTRY: HOW INNOVATION CAN ENHANCE ACCESS TO JUSTICE, Emory University Law School, Atlanta, GA (January 30, 2020).

Invited Speaker, Using Interactive Inventions, W&L FACULTY WORKSHOP, Washington and Lee University School of Law, Lexington, VA (January 27, 2020).

Invited Presenter, Access to the Patent System, 8TH ANNUAL SCHOLARS ROUNDTABLE, University of New Hampshire Franklin Pierce School of Law, Concord, NH (October 11, 2019).

Presenter, Access to the Patent System, TEXAS A&M INTELLECTUAL PROPERTY SCHOLARS ROUNDTABLE, Texas A&M University Law School, Fort Worth, TX (September 27, 2019).

Invited Panelist, Access to the Patent System, 4TH NATIONAL PEOPLE OF COLOR LEGAL SCHOLARSHIP CONFERENCE, American University Washington College of Law, Washington, DC (March 23, 2019).

Speaker, Using Interactive Inventions, WORKS IN PROGRESS INTELLECTUAL PROPERTY CONFERENCE, University of Houston Law Center, Houston, TX (February 8, 2019).

Invited Panelist, Used Inventions, Fourth Annual TEXAS A&M INTELLECTUAL PROPERTY SCHOLARS ROUNDTABLE, Texas A&M Law School, Fort Worth, TX (October 5-6, 2018).

Invited Speaker, Emerging Technologies Challenging Current Legal Paradigms, Faculty Development Talk, Wake Forest University, Wake Forest, NC (March 29, 2018).
 
Presenter, Register Right: The ABCs of Protecting Your IP, SXSW Startup & Tech Sectors Track, Austin, TX (March 13, 2018)
 
Invited Panelist, The Legal Landscape of the Internet of Things, Minnesota Journal of Law, Science & Technology Symposium, Minneapolis, MN (March 2, 2018).
 
Invited Panelist, Strategies and Support for Persons of Color in New Law Teaching, 2018 AALS Annual Meeting, San Diego, CA (January 4, 2018).

Presenter, Emerging Technologies Challenging Current Legal Paradigms, International Conference on New Paradigms in Law, National Chengchi University College of Law, Taiwan (December 4-5, 2017). 
 
Presenter, Patent Quality and Claim Clarity, Intellectual Property Scholars Conference, Benjamin N. Cardozo School of Law (August 11, 2017).
 
Presenter, Access to the Patent System, Race + IP, Boston College, Boston, MA (April 21, 2017).

Presenter, Process and Product Patents: New Data & Results, PatCon 7, Northwestern Pritzker School of Law, Chicago, IL (April 7, 2017).
 
Presenter, Patent Quality and Patent Enforcement, Junior Intellectual Property Scholars Association Semi-Annual Workshop, Michael E. Moritz College of Law, The Ohio State University, Columbus, OH (January 21, 2017).

Invited Speaker, Trade Secrets, Safe Harbors, and International Trade, Intellectual Property Transpacific Conference, Vietnam National University, University of Economics and Law, Ho Chi Minh City, Vietnam (December 7, 2016).
 
Moderator, Are Patent Agents Privileged: In re Queen University (Fed. Cir. 2016) v. In re Silver (2016) 54th Annual Conference on Intellectual Property Law, Plano, TX (November 15, 2016).
 
Invited Speaker, Recent Developments in Intellectual Property Law, 24th Annual Corporate Counsel Symposium, SMU Dedman School of Law, Dallas, TX (October 28, 2016).
 
Co-Chair, Intellectual Property and Social Justice, 13th Annual Symposium on Emerging Intellectual Property Issues, SMU Dedman School of Law, Dallas, TX (September 30, 2016).
 
Invited Commentator, A Restitution Perspective on Reasonable Royalties, The Conference on Patent Damages, The University of Texas Law School, Austin, TX (June 9-10, 2016)
 
Commentator, Dividing the Spoils: Fair Division and Intellectual Property Law,
PatCon 6, Boston College Law School, Newton Centre, MA (April 8, 2016).

Commentator, Inaugural Texas A&M Intellectual Property Scholars Roundtable, Texas A&M Law School, Fort Worth, TX (October 9-10, 2015).

Media

Artificial Intelligence and Access to the Patent System, Examining Institutional Structures: Race, Business, the University of Iowa College of Law, Innovation, Business & Law Center (September 10, 2020)

Profile of an App created by students in my Designing Legal Apps course

 

My interview of John Carmack, CTO of Oculus VR:



2018 Designing Legal Apps Showcase:



Press about my Designing Legal Apps Class:


SMU Law Students Create Apps to Help Legal Aid Lawyers

Students Conceptualize Legal Aid Apps in New Law School Class

Interviews:

The War on Induced Infringement Patent Trolls, Poachers and the Wild District of Eastern Texas

Corraling Patent Trolls in East Texas

Other

Works in Progress:

Enabling Artificial Intelligence

 

In order to obtain a patent, an inventor’s patent application must enable others to make or use their invention.  This rule is referred to as the enablement requirement.  The enablement requirement ensures that the inventor is in possession of the invention.  In addition, the enablement requirement ensures that, in exchange for a patent, the public has received a sufficient invention disclosure. 

 

Historically, the impact of the enablement requirement has differed based on the technology in question.  Inventions in the “predictable” arts such as engineering have required less description to meet the enablement requirement.  In contrast, unpredictable inventions in areas such as biotechnology have required more detailed disclosures to satisfy the enablement requirement. Inventions that incorporate artificial intelligence (“AI”) present an interesting challenge for enablement doctrine.  AI has its origins in the disciplines of math and computer science.  Both disciplines are traditional examples of predictable technology.  Yet, AI inventions are also perceived to produce unpredictable results.  In a recent request for comments, the USPTO asked “How can patent applications for AI inventions best comply with the enablement requirement, particularly given the degree of unpredictability of certain AI systems?” 

 

This project will identify the relevant law concerning the enablement doctrine.  It will discuss the rationale for enablement and critique how it is currently applied to AI inventions. Finally, this project will suggest avenues for the reform of enablement law as applied to AI inventions.

 

Process and Product Patents: New Data and Results

 

Independent patent claims provide a detailed description of the invention protected by the patent. Generally, each independent claim in a patent may be one of three types: a process claim (claiming a method or a process), a product claim (claiming a machine, manufacture or product), or a product-by-process claim (claiming a product by the method used to manufacture the product). Patents typically comprise more than one independent claim—often of different types. The relative shares of the different types of independent claims thus provides an indicator of the type of invention or innovation that is protected by the patent: predominantly a process or a product.

 

In this paper, we use natural language processing tools to categorize claims in USPTO patents (from 1976 through 2015) as either process claims, product claims, or product-by-process claims. We follow patent drafting rules and conventions to develop software that algorithmically identifies a patent claim as belonging to one of these categories. To assess the precision of our approach, we have constructed a golden-standard sample with close to 10,000 independent

patent claims that were manually categorized by individuals on Amazon Mechanical Turk.

 

We provide data both at the claims level and at the patent level. Using data at the claims level, we document and describe the composition of patents (with respect to the shares of process and product claims) over time and across different technology classes and industries. At the patent level, we document and describe the distribution of patents (i.e., comprising predominantly process claims vs. product claims) for different industries and firms over time and across technology classes.