05.27.18

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On Ethics of Patent Lawyers

Posted in Patents at 5:55 am by Dr. Roy Schestowitz

The simple rule: be honest, be good.

Tech eye

Summary: Ethics in the legal community, including the practice of patent attorneys/lawyers, are paramount; they need to live up to the notions of law and justice, not greed and extortion

I DO NOT dislike lawyers. I think many lawyers do an important job. Many do it pro bono, too (some have done that for us). We always try to distinguish between what we call patent microcosm/maximalists, for example, and ordinary people who offer honest advice. Some patent lawyers are good people and not all patents are bad. Some patent lawyers have in fact become the Nemesis of EPO management simply because they say the blunt truth, e.g. regarding UPC.

“Many of them are good people. Many are scientists, especially those dealing with examination (more so than administrators).”We’ve always encouraged patent lawyers, whether European or American, to remember that their goal ought to be advancing science and technology, not excessive litigation, injunctions etc. The same goes for examiners, either European or USPTO clerks. Many of them are good people. Many are scientists, especially those dealing with examination (more so than administrators). One writer at Patently-O (David), a former patent court clerk, writes a lot about ethics in patents and practice surrounding patents.

Just before the weekend the Docket Navigator highlighted a new case wherein a patent lawyer’s alleged conflict of interest was revisited in Rio Brands, LLC v GCI Outdoor, Inc. To quote:

The court denied plaintiff’s motion to disqualify defense counsel who had previously represented plaintiff for 20 years on intellectual property matters and concurrently represented plaintiff in patent prosecution matters during seven months of the instant case because counsel’s misconduct did not taint the underlying trial.

Many scholars regularly speak for ethics and for patent reform. We should also note that some CCIA staff comes from the legal profession (sometimes with spousal connections at the USPTO) and still objects to patent maximalism. Does that make these people “anti-patent”? Of course not. Only extremist sites like Watchtroll would accuse anyone who isn’t equally extreme of being “anti-patent”? Watchtroll even calls courts and judges that — a subject we shall revisit later in this Bank Holiday (long) weekend.

“Our world needs innovation fostered by few (and strong) patents, not litigation fostered by plenty of rubbish patents.”There’s a profound issue when it comes to already-underfunded and already-understaffed media; many articles are nowadays composed either directly or indirectly (e.g. extensively quoting) by patent law firms, which means they dominate the debate about patents. Engineers, developers etc. are rarely even being asked about their views, let alone given “media space”. Just the other day we saw this typical sales pitch from the patent microcosm (“Patent 101: Patent Process FAQs for Inventors”) wherein Ward and Smith serveed some new examples which showed overselling of prospects (patenting, litigation) just to bill for utterly wasteful bureaucracy. Please stop doing that. If your law firm lacks ‘demand’ (or ‘business’), then maybe it’s time to change profession and not resort to media distortion. Our world needs innovation fostered by few (and strong) patents, not litigation fostered by plenty of rubbish patents.

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