“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.

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