The IP Lawyers Strike Back

dashNine writes "The National Law Journal has a hagiographic article on big-money patent lawyers. The article begins with a worshipful (if brief) description of Amazon's patent infringement claim against bn.com, and excoriates Wired for not patenting the concept of a "click-through" banner ad. It then ventures into the territory of patent consultants and counsel, discussing their tactics and methods for finding what they consider to be patentable IP. (Favorite quote: "[O]ne of the most difficult tasks in ... intellectual property asset management is to get the engineers and lawyers talking to one another." " Wow. I think the people who are involved in this article must come from a different Universe than I do.

Comments

Sounds like nobles and serfs.

[Ungrounded Lightning]

This "Gathering" sounds like the nobles getting together to figure out how best to exploit the serfs and to standardize the methods. An interesting view into the management mindset.

Before you slam lawyers in general

[Brento]

Keep in mind that even the title of the article pretty well portrays how these lawyers are seen in the eyes of their own community. I hang out with a lot of lawyers (don't ask) and they rank patent suits right down there with ambulance chasers.

Lawyers are just like CS guys in a way: they want to be involved in important, meaningful projects. Suits like the etoy/Etoys thing are nowhere near important or meaningful. Get a bunch of lawyers in a room and ply them with drinks, and pretty soon you hear that they don't give a rip about things like this.

Now, y2k, on the other hand...that's bad news. They smack their lips greedily at our plight, because it's so incredibly easy to prove that the year 2000 was a foreseeable problem that we should have taken into account...

Different mindset

[ajs]

One of the things that we as a community misunderstand often is that these are not evil Snidelies, twisting their waxed-mushaches and cackling. Most IP lawyers are convinced that they are doing the right thing for a company. They are not at all aware of the damage that they are doing to the industry, and get very boggled when an engineer who is supposed to be working FOR a company does not want to HELP that company.

One of the most valuable things that engineers can do is talk to these lawyers in a calm, reasonable way and explain that the future of the software that created the Internet hinges on the assumption that the current patent mania will be stopped by a popular pressure on the USPTO. Change must come or too many of the inovations that the Open Source community NEEDS to impliment will be closed to us by software patents.

You must make it clear that they are not helping your company by acquiring patents that push the envelope of the USPTO's charter. They are, in fact introducing potential public-relations nightmares (like Amazon is now dealing with, and Unisys has been dealing with for years).

Also, encourage your company to create a "free for open source" licensing strategy for their patents. This will not help the GPL world, as the GPL forbids using patent-restricted processes, but the MIT/X and BSD licenses have no such restrictions and could benifit widely from such licensing. It would also help the company in question, as they could require the source to be commented in such a way as to indicate the owner of the patent, and anyone wanting to create a closed implimentation would know who to go to for a license.

Re:Different mindset

[MattMann]

The problem lies with the PTO and the courts, not with lawyers, and not with corporations.

One of the things that we as a community misunderstand is that lawyers, evil Snidelies or not, are simply following the law and their code of ethics when they advise their clients of what is in the client's best interest. Among their clients are corporate executives who are required to act in the best interests of their shareholders.

If you sit down and calmly tell them, "don't do it, it's not in our best interest" then I hope what they do is calmly reply to you, "it is in our best interest." Let me [hyperspace topic jump] use an example from econ 101, one from the family of "the failures of the commons": traffic jams are bad, right? And yet traffic jams form because what is in one's personal interest is not in the best interests of the group. People are willing to add themselves to a clogged highway because it is still the fastest way for them to get to work at that moment. Yet, their personal time savings turns out to be less than the total time they add to everyone else's commute. It's called a negative externality. [hyperspace topic wormhole collapses... we are back] So, we as a community can be against these patents because of their negative externalities, but it is not feasible to convince individuals that it is not in their interest because patents simply are in their interest.

Sit down and calmly discuss it with your representative, with the PTO, with the judge... but the best way to convince an individual is probably to scream incoherently, to threaten, undermine, backstab and be otherwise civilly disobedient. Your reaction will need to be way out of proportion to change their equation.

Somehow our society at large needs to be shown that computers virtualize everything, and when the mouse click was invented, everything one could do with a mouseclick became obvious. Why isn't that obvious?

Intellectual Property

[PenguinX]

The sad fact of the matter is that patenting a concept or idea is terribly difficult to uphold in court through the entirety of a trial. A "Method For Implementing..." patent was initially granted to companies or small inventors before their product came out. In other words if I had an method for implementing a concept, for instance a computer I may implement "method for data transport via the ISA bus" etc. etc.. These patents are supposed to be nullified or pushed into the background when the product as a whole is released.

In the past if a product was released it was perceived as the only way to do the task that was performedby that product. After the automobile technology and patent laws should have changed -- well technology changed but patent laws never did.

The problem now is that technology is rapidly accelerating, gaining ground on and in every field. Naturally people will take advantage to "cash out" - as in any time period, or society. The problem is that the American Justice System helps and hurts at the same time. It helps break up the monopolys that it helps create. So now it's the governments fault -- which isn't entirely true. Again, we don't live in a Utopian Society but let's not be lazy -- let's change patent law to reflect the times, not the 1890's.

And the winner is...

[lance_link]

This "gold rush" metaphor is very misleading. First of all, can you name a single company that began amidst the original gold rush and still exists? You bet you can: Levi-Strauss. They did well because they were selling to all the prospectors. The big winners from this new "gold rush" won't be the prospectors, it'll be the service industry that supports it: lawyers and so on.

If the patent system keeps on running amok, it'll have to be reformed - and most of those patents will turn out to be worth the paper they're printed on, if that much. But the lawyers will survive even that fiasco quite well.

Ultimately, the idea that someone can own and control something simply because s/he thought of it is a pretty good definition of evil. The universe of techniques, procedures, and mechanisms that could make the world a better place is a bit like natural resources. Working day and night to use them up as fast as possible is just a way of stealing them from future generations. They won't look very kindly on this period, I think.

Open source, of course, is the solution. ;) Why? Because it allows for others, now or in the future, to build on and improve our efforts now. And that's a pretty good definition of Good.

The Real Problem (as I see it)

[Skyshadow]

Okay, so I think we've established that everyone on /. thinks that the current situation down at the patent office is completely nuts, so...

If you were congress, who would you fix it? I've been playing around with law wordings in my head that would keep companies from accomplishing the monopolization of important ideas and concepts. The problem I'm having is that every bill I come up with in my head would also cause someone who came up with a truly unique service from patenting it (which is, of course, contrary to the whole idea of the patent system).

So, assuming that we're not out to destroy the patent system completely (and I know there are people out there who'd like too, but I think that's unrealistic), how would you legislate to stop abuses while still letting the reasonable patents get through?

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