IP Attorneys Increasingly Getting Their Own Patents And Suing

from the joining-in-the-party dept

Wed, Sep 10th 2008 12:53pm — Mike Masnick

A year ago, the story of patent attorney Scott Harris started making headlines. While being an IP attorney at a prestigious law firm, on the side, Harris had been getting his own patents, and then using a shell organization to sue companies for infringing. Some of the companies sued were represented by the firm that Harris worked for. Talk about a conflict of interest, right? Well, reporter Joe Mullin has discovered that these sorts of things are increasingly common. Various IP attorneys involved in patent hoarding lawsuits are seeing how lucrative it can be to just get a patent and sue -- and so they're eagerly jumping into the game themselves. Mullin dug up a bunch of cases of IP lawyers getting their own patents, and then suing over those patents, outside of their day job. Not surprisingly, many of the patents seem highly questionable (a patent on a car entertainment system that has a radio in front with DVD video in back.)

However, the bigger question is the conflict of interest. First, with lawyers getting their own patents, there are always going to be questions about whether any of the patents are really the work of clients rather than the lawyer themselves. In fact, in the case of the car entertainment system above, one of the companies that's been sued over the patent points out that "two diagrams and several columns of text" appear to be directly plagiarized from another company's patents -- who just so happened to be a client of law firm the lawyer worked for. Oops.

The second potential conflict of interest is, as with Harris, about suing companies that are represented by the law firm the lawyer in question works for. In some cases, the lawyers dance around this. For example, in one of the cases Mullin discusses, the lawyer sued three of the four companies who own CareerBuilder. The lawyer did not sue the fourth owner, the Tribune Company. Why? While there's no official explanation, it's not hard to figure it out. The Tribune Company is a client of the law firm the guy works for. The other three owners are not. So, basically, the Tribune Company got lucky that the guy with the patent just happens to work for a law firm it uses. Perhaps the law firm sees this as a way of "locking in" clients: leave us, and one of our lawyers will sue you for patent infringement.

Either way, the article is a pretty depressing look at the state of patent law and patent lawyers these days.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: conflict of interest, ip lawyers, patents

33 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 10 Sep 2008 @ 1:46pm

Why you say this is a "depressing look at the state of patent law" is not clear given that the articles only talk about a few lawyers who apparently have invented some things and received patents on their inventions.

As for your asserting that the article represents a "depressing look at the state of....patent lawyers these days", please explain with reference to uncontroverted facts what it is that these very few persons have done that are illegal, immoral and/or unethical.
[ link to this | view in thread ]
Stephan Kinsella (profile), 10 Sep 2008 @ 1:50pm

One Patent Lawyer Agrees With you
And that's me. It's getting worse and worse--patent attorneys' and practitioners' defenses of the system is getting more and more dishonest and hysterical as the illegitimacy of the patent system becomes more and more apparent. Sad. As I explain in Against Intellectual Property, there is no justifying the patent system. It is unjust, basically tantamount to legalized theft.
[ link to this | view in thread ]
Anonymous Coward, 10 Sep 2008 @ 2:06pm

Patent this!

F*ck you
[ link to this | view in thread ]
discojohnson, 10 Sep 2008 @ 2:36pm

IANAL
but couldn't i just come up with a product and give it away for free, but charge people for an instructional manual on how to operate it?
[ link to this | view in thread ]
Anonymous Coward, 10 Sep 2008 @ 3:07pm

Re:
Oh wow, do you have reading comprehension issues? There's a lot of immorality in PLAGIARIZING A CLIENT'S PATENT, then SUING SAID CLIENT WITH THE GRANTED, PLAGIARIZED PATENT.
[ link to this | view in thread ]
Anonymous Software Developer, 10 Sep 2008 @ 3:08pm

Re: IANAL
yes, in fact it has already been done, they call it Linux
[ link to this | view in thread ]
Angry dude, 10 Sep 2008 @ 3:09pm

Cue rant
*Insert senseless ad hominum rant/attack here with nothing to do with actual article*
[ link to this | view in thread ]
Anonymous Coward, 10 Sep 2008 @ 3:19pm

Re: Re:
If you read the history of this matter you will quickly discover that the your understanding of the facts is incorrect.
[ link to this | view in thread ]
Mike (profile), 10 Sep 2008 @ 3:39pm

Re:
Why you say this is a "depressing look at the state of patent law" is not clear given that the articles only talk about a few lawyers who apparently have invented some things and received patents on their inventions.

The point should be obvious, though perhaps not to many of those who make their money as patent attorneys (Mr. Kinsella below suggests that there are some who see it however).

As for your asserting that the article represents a "depressing look at the state of....patent lawyers these days", please explain with reference to uncontroverted facts what it is that these very few persons have done that are illegal, immoral and/or unethical.

Again, if you cannot see what is problematic with what is happening, I would suggest that says quite a lot about your moral compass. The issues are outlined already in both the post and the article. I've debated with you in the past questions of conflict of interest, and you have shown that you believe in a much lower bar. Fair enough.

Others would likely disagree with you.
[ link to this | view in thread ]
Angry Itch, 10 Sep 2008 @ 5:02pm

Re: Re:
I do! The law should protect the people, and not provide opportunities for the scam artists.
[ link to this | view in thread ]
Anonymous Coward, 10 Sep 2008 @ 6:32pm

Conflict of Interest
In the past, I had to fill out a form every year which stated that I did not have any conflict of interest. Granted, this was with a firm that worked government contracts. But we needed to avoid even the appearence of conflict or impropriety.

Apparently this approach is not shared in other areas of the business world.
Ref: http://en.wikipedia.org/wiki/Conflict_of_interest
[ link to this | view in thread ]
sarge, 10 Sep 2008 @ 6:40pm

big shocker
Anonymous coward is a lawyer go figure... his moral compass is pointed south
[ link to this | view in thread ]
Anonymous Coward, 10 Sep 2008 @ 9:27pm

I daresay that the vast, vast majority of attorneys, myself included, look askance at those who give the impression they are scaming the system. The number engaged in what may be perceived as scamming is so small in number that they represent a percentage of all attorneys that is almost invisible. These few and their actions are many times debated and generally not looked upon with favor by other members of the bar.

The problem with those who are noted in the article is that the devil is in the details, and upon close examination most of the objections about unseemly conduct do not stand up to an inquiry of the facts. The "perception" makes for good headlines, but there is seldom a follow up by the media whenever "perception" is proven to be inaccurate.

These is nothing fundamentally wrong with an attorney also being an "inventor" (chester Carlson is one example) as long as their activities do not violate the rules of professional conduct governing the practice of law before state and federal authorities. Conflict of interest is a matter that is taken quite seriously, and it is a foolish attorney who tries to cut corners guided by self-interest.

In view of the above, and for other good reasons too numerous to mention, this is why I asked Mr. Masnick for facts supporting his broad brushstrokes concerning this issue. It is easy matter to proffer broad generalizations, but quite another matter to articulate them with specificity that is factually based.
[ link to this | view in thread ]
Anonymous Coward, 11 Sep 2008 @ 5:33am

Reminds me of watching Republicans
It’s just like watching the last 8 years of corrupt, inept and intellectually insulting Republican leadership in Government. Their rampant corruption and open distaste for constitutional and ethical limitations on their own personal greed, combined with an obvious contempt for the intelligence and understanding of the American people, basically lead them to destroy themselves in an orgy of abusing near unlimited power (so much so LOL they are now running on a platform of CHANGE! . . . now that’s funny!). It appears this same destructive narcissistic pattern may be appearing in IP law as well.

This usually happens when greed and contempt for the public combine as the result of much undeserved success. The thinking of “these people are so stupid, we can get away with anything” just seems to naturally drift into the consciousness of people in these situations and usually leads to their own self-collapse.
[ link to this | view in thread ]
dinnerbell, 11 Sep 2008 @ 6:29am

Re:
yes mike, such a broad statement is unsupported by the evidence your present. once again, you jump to conclusions.
[ link to this | view in thread ]
Anonymous Coward, 11 Sep 2008 @ 7:42am

Re: Re: Re:
" In fact, in the case of the car entertainment system above, one of the companies that's been sued over the patent points out that "two diagrams and several columns of text" appear to be directly plagiarized from another company's patents -- who just so happened to be a client of law firm the lawyer worked for. Oops. "
[ link to this | view in thread ]
Enid of Enoughborough, 11 Sep 2008 @ 8:05am

Re:
Clearly, you must have aced "Moral Bankruptcy for Lawyers 101." Even though it stinks like shit, looks like shit, tastes like shit, and sticks to your shoes like shit, it isn't explicitly cited as "shit" in the legal ethics handbook, so you can smugly look the other way. We shouldn't really care about the small percentage of attorneys who are screwing a large segment of society, because, well, they're just a small percentage.

Maybe we should forget about prosecuting criminals, too, because after all, they're just a small percentage of the population.

No wonder people (you know, those of us with morals and ethics) hate lawyers.
[ link to this | view in thread ]
Anonymous Coward, 11 Sep 2008 @ 8:07am

Re: Re: Re: Re:
Tell you what. Run this by Irah Donner at Wilmer Cutler Pickering Hale and Dorr and see what he has to say about the patents he acquired and the history associated with their being asserted against various parties.
[ link to this | view in thread ]
another mike, 11 Sep 2008 @ 3:10pm

If my lawyer stepped across the aisle to prosecute a case against me, I think I'd have a few words for the state bar association. Despite his soulless shysterism, I almost tolerate him since he keeps me out of trouble. So long as he stays on my side of the courtroom, the only bar we need to be concerned about is the one serving drinks. He's got all my money so he's buying ;)
[ link to this | view in thread ]
Marion E. Cavanaugh Reg No 40550, 11 Sep 2008 @ 6:22pm

Article on Patent Lawyers
Knowing how shoddy some journalists and bloggers are, I think I am entitled to say "pretty depressing to see the state of Communication law and journalists/bloggers these days".
My point is that there are reputable patent attorneys, and much patent law is excellent. I personally am about as reputable an attorney as you can find, and I specialize in small inventors because I think it is the thing to do (at MUCH less money than I would make in other areas of patent law!).

I will say, anyone who takes a few isolated instances, and morphs them into a general indictment, is NOT reputable!
[ link to this | view in thread ]
Mike (profile), 11 Sep 2008 @ 10:22pm

Re: Article on Patent Lawyers
My point is that there are reputable patent attorneys

I never stated, or even implied, otherwise.

I was not damning ALL patent attorneys.

I was merely damning the state of the patent system that made it so that *more* patent attorneys were doing this.

And, I find it difficult to believe that you actually think Joe Mullin was a bad journalist. He dug up all sorts of interesting info, and quoted multiple folks noting that this was a growing trend.

Neither of us said that it was common -- just growing. But the reasons that it's growing are why I noted that the patent system is in sad shape, in that it encourages this type of behavior.

If you are such a great lawyer, I would think you would understand the difference between what I actually said, and what you claimed I said.

I think you owe both me and Joe an apology.
[ link to this | view in thread ]
Mike (profile), 12 Sep 2008 @ 2:16am

Re: Re: Re: Re: Re:
Tell you what. Run this by Irah Donner at Wilmer Cutler Pickering Hale and Dorr and see what he has to say

Uh... so we're supposed to run this by one of the lawyers mentioned in the article for his questionable practices? As if he's not biased?
[ link to this | view in thread ]
John, 12 Sep 2008 @ 7:00am

Lawyers?
"First, we kill all the lawyers."

No further comment required.
[ link to this | view in thread ]
Anonymous Coward, 12 Sep 2008 @ 8:23am

Re: Re: Re: Re: Re: Re:
Correct me if I am wrong, but do not journalists as a general rule try and get quotes for the record, even from "biased" parties?
[ link to this | view in thread ]
Mike (profile), 12 Sep 2008 @ 1:01pm

Re: Re: Re: Re: Re: Re: Re:
Correct me if I am wrong, but do not journalists as a general rule try and get quotes for the record, even from "biased" parties?

Mullin did try to contact everyone in the story, and mostly got a big "no comment." If they're so proud of what they're doing, why would that happen?

Are you actually accusing Mullin of not contacting Donner? As the article made clear, he did contact him and Donner wouldn't respond.

So, yes, Mullin did exactly what you asked, and Donner hid in shame.

But that wasn't the point you were originally making. The reason you brought up Donner was to suggest that none of us can comment on the situation until Donner has given approval.

Yeah. Right.
[ link to this | view in thread ]
Anonymous Coward, 13 Sep 2008 @ 8:45am

Re: Re: Re: Re: Re: Re: Re: Re:
"But that wasn't the point you were originally making. The reason you brought up Donner was to suggest that none of us can comment on the situation until Donner has given approval."

No...mine was merely to note that conclusions drawn and opinions expressed using an incomplete set of facts do little to accurately inform the public and engender informed discussion.
[ link to this | view in thread ]
Mike (profile), 13 Sep 2008 @ 1:27pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
No...mine was merely to note that conclusions drawn and opinions expressed using an incomplete set of facts do little to accurately inform the public and engender informed discussion.

Donner had every opportunity to respond. He chose not to. I think we can draw perfectly clear conclusions from that.
[ link to this | view in thread ]
Anonymous Coward, 13 Sep 2008 @ 7:46pm

"Donner didn't respond to questions for this story."

The above is taken from the linked article. Personally, I do not believe it contains sufficient information from which I can reasonably draw any definite conclusions.
[ link to this | view in thread ]
Mike (profile), 14 Sep 2008 @ 10:11pm

Re:
The above is taken from the linked article. Personally, I do not believe it contains sufficient information from which I can reasonably draw any definite conclusions.

I actually spoke with Joe Mullin about it. So, yes, I can draw a definite conclusion.

In the meantime, could you explain why you think no one should be allowed to comment on it without getting his official blessing first? Seems odd.
[ link to this | view in thread ]
Anonymous Coward, 15 Sep 2008 @ 4:44pm

Re: Re:
In the meantime, could you explain why you think no one should be allowed to comment on it without getting his official blessing first? Seems odd.

I see nothing odd about believing that the accuracy of relevant facts be independently verified before publishing an article. Otherwise, an article turns into little more than a gossip column.
[ link to this | view in thread ]
Mike (profile), 16 Sep 2008 @ 3:48am

Re: Re: Re:
I see nothing odd about believing that the accuracy of relevant facts be independently verified before publishing an article. Otherwise, an article turns into little more than a gossip column.

Thus all any guilty party need do is refuse to comment, and suddenly, under MLS's logic, no article can be published.

Brilliant.
[ link to this | view in thread ]
Anonymous Coward, 16 Sep 2008 @ 8:09am

Re: Re: Re: Re:
...And, under techdirt's logic, it is perfectly fine for an article to be published without the need to garner facts before publishing a story. If a reporter want to engage in investigative journalism, it seems only proper that he she actually investigate.

Small wonder Thomas Jefferson generally eschewed reading newspapers and felt better informed because of it.
[ link to this | view in thread ]
Mike (profile), 16 Sep 2008 @ 11:28am

Re: Re: Re: Re: Re:
MLS, can you please explain how Mullin "did not garner facts"?

That would be much appreciated.
[ link to this | view in thread ]