“Expertise” Is Not Always a Good Thing

by on February 14, 2007 · 10 comments

The House has passed legislation allowing judges to volunteer to receive special training in patent law, after which, other judges could voluntarily defer to those judges when patent cases come along.

Better trained judges are a good thing, right? Not so fast, says Mike Masnick:

We’ve been through this before. In 1982 there was a lot of concern about patent litigation and jurisdiction shopping, as lawyers would rush to file lawsuits in specific regions where they were more likely to get favorable rulings. To deal with that, Congress created the Court of Appeals for the Federal Circuit (CAFC) which handles all patent-related appeals. Seems like a good idea, right? Except that by establishing such a specialized court, it didn’t take long for the court to be dominated by former patent attorneys who view the patent system in a very different way than its originally intended purpose. They tend to prefer a much broader scope of patents–and, indeed, CAFC helped make it okay for business models and software to be patented. They greatly expanded what could be patented, while also making the risks of violating a patent much greater. That, alone, is what has helped overwhelm the patent office with tons of patent applications.

Unfortunately, it looks like the House has now passed the bill allowing for this education regime which could create a very similar situation at the lower court levels. Judges will be “trained” on patent issues–but it isn’t explained what that training will include. It’s likely, though, that it will come with that same bias towards more patents, rather than promoting innovation. The bill also pushes for “specially appointed clerks with patent expertise,” which again probably means things like former patent examiners. There’s nothing to counterbalance the one-sided education that these judges are likely to receive–and since the bill also would let other judges hand off patent lawsuits to these “specially trained” judges, the end result may be a lot worse, rather than better. It certainly sounds like a good idea to better educate judges on patent issues–but it’s not hard to see that the education would be very one-sided, and the system would tilt even further in a dangerous, anti-innovation direction.

A few days ago I got an angry email from a patent lawyer who had read my American piece on the Teleflex case. It was clear that we lived in different worlds. He was utterly convinced that patent reform efforts were a conspiracy by big companies to use other peoples’ inventions without paying for them. He didn’t even seem willing to admit that the patents in the NTP/RIM case were bogus.

Almost everyone–especially lawyers with six-figure salaries–has a bias toward thinking their own work is more important than it really is. It makes sense that lawyers who make their careers in patent law would over-estimate the importance of patent law. When the hammer in your toolbox is a knowledge of patent law, then the whole world looks like a patentable nail.

So it makes sense that when you make some of those patent lawyers into judges, they’re going to carry those same biases with them. Nobody wants to admit that large segments of the economy would actually be better off without the involvement of their own profession. So every time somebody suggests extending patent law to a new category of “inventions”–software, business methods, garbage bags painted to look like pumpkins–the former patent lawyers on the federal circuit have said “why not?”

As Mike says later in his post, a patent lawyer is not a neutral expert on the merits of patent reform. He’s got a vested interest–both financial and emotional–in the wide application of patent law. Moreover, a patent lawyer has a lousy perspective because in his professional life he only deals with those companies, industries, and products that involve patents. Therefore, he’s got no experience with how innovation might work in the absence of patents.

I’ve often been struck in recent months at the parallels between patent law and eminent domain law. One of the striking thing about eminent domain law is that absolutely none of the lawyers who practice law in eminent domain want to see the use of eminent domain for private development abolished completely. (Well, aside from these guys.) Even lawyers who make their living defending property owners will tell you that what’s needed is procedural reforms that provide more opportunities for homeowners to defend themselves in court. (reforms that, generally speaking, would make the process even more complicated, necessitating the hiring of more lawyers.) It’s not hard to imagine why they might feel this way: if you were to abolish eminent domain for private development entirely, the number of eminent domain cases would drop, and a lot of lawyers with expertise in that area would have trouble finding work.

So too with the patent bar. Genuine patent reform would drastically reduce the number of patent lawyers. Therefore, genuine patent reform is directly contrary to the interests of every member of the patent bar–even those who generally make their living defending innovators from frivolous lawsuits.

  • http://bennett.com/blog Richard Bennett

    Tim, take off your tin-foil hat and look at the problem objectively for a second. Engineers invent, lawyers litigate. The patent court is doomed because its very structure has liberal arts majors* passing judgment on the work of engineering majors. There’s always going to be a disconnect, and always going to be suits, frivolous or otherwise.

    Our system of government doesn’t have a better solution than to team judges with engineers who can help them understand the technical issues in play. Engineers can’t do it alone as they rarely understand the legal issues. This would still be a problem if all the lawyers were neutral and all the engineers were acting in good faith.

    (*Full disclosure: my only college degree is in philosophy, a liberal arts discipline)

  • http://bennett.com/blog Richard Bennett

    Tim, take off your tin-foil hat and look at the problem objectively for a second. Engineers invent, lawyers litigate. The patent court is doomed because its very structure has liberal arts majors* passing judgment on the work of engineering majors. There’s always going to be a disconnect, and always going to be suits, frivolous or otherwise.

    Our system of government doesn’t have a better solution than to team judges with engineers who can help them understand the technical issues in play. Engineers can’t do it alone as they rarely understand the legal issues. This would still be a problem if all the lawyers were neutral and all the engineers were acting in good faith.

    (*Full disclosure: my only college degree is in philosophy, a liberal arts discipline)

  • http://www.techliberation.com/ Tim Lee

    Richard, if the proposal were to hire some engineers to advice judges on the merits of patents, I think that would be a fantastic idea. But I think Mike is right that that’s not what this “training” is likely to be. Rather, the training is likely to consist of instruction on the minutia of the Federal Circuit’s patents jurisprudence, which will make them more likely to follow the Federal Circuit’s lead and rule on the minutia of patent doctrine without looking at the big picture.

    I think having most of the judges who decide patent cases not be patent lawyers is an important check on abuse in the patent system. This “reform” seems likely to make it more likely that former patent lawyers will be hearing patent cases.

  • http://www.techliberation.com/ Tim Lee

    Richard, if the proposal were to hire some engineers to advice judges on the merits of patents, I think that would be a fantastic idea. But I think Mike is right that that’s not what this “training” is likely to be. Rather, the training is likely to consist of instruction on the minutia of the Federal Circuit’s patents jurisprudence, which will make them more likely to follow the Federal Circuit’s lead and rule on the minutia of patent doctrine without looking at the big picture.

    I think having most of the judges who decide patent cases not be patent lawyers is an important check on abuse in the patent system. This “reform” seems likely to make it more likely that former patent lawyers will be hearing patent cases.

  • http://bennett.com/blog Richard Bennett

    Crazy Mike says: “The bill also pushes for “specially appointed clerks with patent expertise,” which again probably means things like former patent examiners.”

    Patent examiners are engineers, not lawyers. So you’re in favor of the plan Crazy Mike is dissing.

    Most judges, as I’m sure you know, are former prosecutors, but we don’t have a problem with them judging criminal cases. With expertise comes the possibility of some sort of bias, but ignorance is no less free of bias. Would you rather have former public interest lawyers judging patent cases? I damn sure wouldn’t. Hire some judges with engineering degrees and the problem is solved, but they come from the patent world.

    Chairman Mao’s people did a number on The Experts during the Cultural Revolution. That’s not a good model to emulate.

  • http://bennett.com/blog Richard Bennett

    Crazy Mike says: “The bill also pushes for “specially appointed clerks with patent expertise,” which again probably means things like former patent examiners.”

    Patent examiners are engineers, not lawyers. So you’re in favor of the plan Crazy Mike is dissing.

    Most judges, as I’m sure you know, are former prosecutors, but we don’t have a problem with them judging criminal cases. With expertise comes the possibility of some sort of bias, but ignorance is no less free of bias. Would you rather have former public interest lawyers judging patent cases? I damn sure wouldn’t. Hire some judges with engineering degrees and the problem is solved, but they come from the patent world.

    Chairman Mao’s people did a number on The Experts during the Cultural Revolution. That’s not a good model to emulate.

  • http://techdirt.com/ Mike Masnick

    Always nice to hear from Richard — the man who was just saying how he wished people would stop insulting each other in these online debates (in a post where he flat out insulted me for no clear reason). Apparently that rule doesn’t apply to himself, hence “Crazy Mike.” Yes, that’s very mature of you, Richard. It makes me take you *that* much more seriously.

    Anyway, I’m not sure what point Richard is arguing here. Is he suggesting that any expert is a good expert? We have a clear history here of what happened the last time this was tried, and it was bad. It’s half the reason we’re in the mess we’re in today.

    “Engineers” aren’t the solution. Especially not patent examiners. Almost every patent examiner I’ve met is just as bad as a patent attorney in their bias towards the system (and many go on to become patent attorneys). They made their living off the patent system too, so again, they are inherently biased on the issue.

    The point is pretty simple: we should be evaluating the patent system from a big picture view, rather than focusing so narrowly on each little piece. Each time we focus on a little piece, we seem to make the system worse by handing more control to those who benefit from more patents.

    That’s all I was saying.

  • http://techdirt.com/ Mike Masnick

    Always nice to hear from Richard — the man who was just saying how he wished people would stop insulting each other in these online debates (in a post where he flat out insulted me for no clear reason). Apparently that rule doesn’t apply to himself, hence “Crazy Mike.” Yes, that’s very mature of you, Richard. It makes me take you *that* much more seriously.

    Anyway, I’m not sure what point Richard is arguing here. Is he suggesting that any expert is a good expert? We have a clear history here of what happened the last time this was tried, and it was bad. It’s half the reason we’re in the mess we’re in today.

    “Engineers” aren’t the solution. Especially not patent examiners. Almost every patent examiner I’ve met is just as bad as a patent attorney in their bias towards the system (and many go on to become patent attorneys). They made their living off the patent system too, so again, they are inherently biased on the issue.

    The point is pretty simple: we should be evaluating the patent system from a big picture view, rather than focusing so narrowly on each little piece. Each time we focus on a little piece, we seem to make the system worse by handing more control to those who benefit from more patents.

    That’s all I was saying.

  • http://weblog.ipcentral.info/ Noel Le

    Masnick, if more patent lawyers find themselves out of work, they might switch career paths and become politicians. In such a scenario, would society be better off? Yes Masnick, I’m afraid your argument only creates more questions than answers…:)

  • http://weblog.ipcentral.info/ Noel Le

    Masnick, if more patent lawyers find themselves out of work, they might switch career paths and become politicians. In such a scenario, would society be better off? Yes Masnick, I’m afraid your argument only creates more questions than answers…:)

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