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

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?