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Monday, 15 January 2007

Will Uganda paintmaker get the brush-off? A word on patent attorneys; Cisco blog

Will Uganda paintmaker get the brush-off?

The IPKat reads from the Uganda website New Vision that Kenyan paint-makers Basco Products have sued Bascom Company for trade mark infringement. Basco, of Kenya, is seeking permanent injunctive relief against the alleged infringer, a Ugandan paint producer. A likelihood of confusion is alleged. If the illustration (right) is anything to go by, the claim looks likely to succeed.

The Kat hopes for further news of this action. In particular, he's curious to know how long it takes to get to court and how the court will handle it. If any reader has any further information on this dispute, will he please keep him informed.

Why paint is a hot topic in Uganda right now here
Children's painting in Uganda here

A word on patent attorneys

The IPKat's weblog is rarely entirely becalmed, but assiduous readers will probably by now have noticed a good deal of huffing and puffing over what to do about patents for computer software (see postings here and here, lavishly garnished with readers' comments). Bloggie David is handling this debate, but Jeremy wants to make one small comment upon it. The suggestion is sometimes raised that patent attorneys (formerly 'patent agents' in the UK) are biased in favour of the patenting software because they are paid large sums to secure software patents for their clients. This is not really a valid point: patent attorneys are also paid to find grounds upon which a software-related patent can be invalidated or upon which, if it is not vulnerable to an invalidity challenge, it may be worked around so as to avoid infringement.

It is unfair to identify the interests of a profession as a whole with the perceived interest of a particular client sector. One may as well say that lawyers who specialise in criminal law are in favour of crime because their income depends on the continued criminality of a class of persons.

Left: every patent attorney appreciates a little tender loving care from time to time

Be nice to spiders here; be nice to nettles here
Sadly, the IPKat's Google search for "be nice to patent attorneys" netted a zero response

Cisco blog

Thanks, M. Jones, for letting the IPKat know that Cisco has started its own blog on the iPhone dispute. This one will run and run. Says Merpel, if it's about phones, you mean this one will ring and ring ...


Anonymous said...

Whilst not wishing to criticise patent attorneys, I'm not convinced that IPKat's usually rigorous logic has been applied to this analogy. Patent attorneys would not get work from disputing validity or avoiding software patents either if the patents did not exist. Surely it's more akin to criminal lawyers arguing for the creation of a new criminal offence - with complex defences!

Anonymous said...

I would say that IPKat is right in theory, but in practice lawyers have been seeking settlements or looking for other easy escapes from litigation rather that arguing that software isn't patentable - it's simple that in the short term if you have a patent you want to make it as broadly as applicable as possible, pushing at the boundaries, wheras when defending you want to get your client off the hook and will take the cheapest/quickest option in the short term, which is usually settling, or trying to outflank a patent rather than a full frontal 'This is software you cant patent it' attack.

..So while Patent Attorneys aren't a malign influence on the whole (excepting a few who lobby or act as MEPs for special interests), their clients short term interests don't tend to result in a narrowing of patenting but the broadening - hence the abundance of bad, trivial and software patents. Fortunately the UKPO is finally pushing back the tide a bit, but I still think clearer legislation is where it's at.

I can't blame lawyers for doing their job, but I can blame the Patent Office and Politicians for being asleep and allowing unrestrained patenting resulting in the amazon '1-click' patent.

Aaron Trevena

Anonymous said...

If the public agrees with the urging to create a new criminal offence, then we should thank the lawyers that urge it. If society devised a penalty that bites on patent owners who assert with a patent that contains at least one over-broad claim, Applicants would instruct their patent attorneys to purge applications of all bad claims before the case goes to grant. That's a far cry from the current position in USA, where you can go to issue with as many over-wide claims as you like, with no adverse effect, and huge intimidatory advantage, just as long as you take care to include at least one claim not clear and convincingly invalid. To my mind, it is patent attorney behaviour that is tuned to current US law that gives patent attorneys a bad name.

Jay Daley said...

I think IPKat has missed the point entirely. Whilst the article is only about software patents this missing of the point worries me far beyond that.

There are plenty of people who are interested in getting software patents, generally to protect some trivial piece of work, and many of them have the money to pay for this.

However far fewer of the people who are prevented from now using that trivial technique, (that they almost certainly invented independently) will have the financial clout or the business case to challenge it.

By gaining a patent you gain a monopoly, with a virtual guarantee that you will make money if you exploit it. By challenging one all you gain is the right to use something. A very big difference in business case.

With trivial patents, which every US software patent I have ever come across is, then this is even more exaggerated. The money to be made by gaining it is enormous and the potential benefit from challenging it is tiny in comparison.

David said...

With respect Jay, I think it is you who have missed the point. Firstly, I suggest you read my previous post about exempting software itself from infringement. Secondly, the problem of overbroad claims is almost exclusively a US one, and is entirely the fault of the US Patent Office, which should not be granting clearly invalid claims. Thirdly, a patent is no guarantee whatsoever that money will be made, for many reasons including the possiblity of infringing someone else's patent by exploiting your own.

Jay Daley said...

David, I thought it was Jeremy who is credited with saying:

"The suggestion is sometimes raised that patent attorneys (formerly 'patent agents' in the UK) are biased in favour of the patenting software because they are paid large sums to secure software patents for their clients. This is not really a valid point: patent attorneys are also paid to find grounds upon which a software-related patent can be invalidated or upon which, if it is not vulnerable to an invalidity challenge, it may be worked around so as to avoid infringement."

And it is to this point my comments are made. Let me explain it differently, this time without reference to the triviality of software patents, which only muddies the waters...

The section above appears to say two things:

- first, that because patent attorneys can make money from both sides of the case they are not biased. I would counter that whilst we do not have software patents then there is significantly less business in this area for patents attorneys and so it is reasonable to expect them to want the position where there is more business and more potential income. Yes there might be a few drabs to be made in trying to challenge a patent by claiming it is software only, or by trying to prove software is not really software, but those are minor.

- second, (and this is what my previous post was about), by inference the point is made that there is equal business to be had, for patent attorneys, in defending against, or challenging software patents as there is in helping to secure them. I would counter here that this ignores the economic impact of the two diferent actions. By paying to be awarded a patent you stand to gain much more money than if you pay to have a patent challenged and the supposed innovation to stay free to use. Now yes, that is not guaranteed and so only on average etc, etc, but it is still a very big differential.

So overall there is a very big market push for software patents and it reasonable to see why many patent attorneys could be included in that push. Of course you might not be, neither might the majority of your profession, but to dismiss anyone who thinks that you might as a person who thinks "that lawyers who specialise in criminal law are in favour of crime" is not going to convince.

Heiner said...

You are really funny. Patent attorneys are always biased towards the patent system. For instance I do not expect any patent attorney to argue in favour of its abolishment. That's understood, vested interests.

Of course patent attorneys get cash on both sides of the struggle. That is the patent system win-win situation for patent attorneys. Patents can be of absolutely no value to the market as it is known to be the case in the software industry. But patent attorney win. Do patent attorneys share the risk our crappy patent system imposes on the market? Oh no. When companies get in patent trouble they hire patent attorneys. Two years later the same company will have a patent policy propaganda unit. Their patent attorney will come to Brussels and tell their fellow software developer why the patent system was so beneficial for the company. Yeah, they will ask the government to promote the use of the patent system. They will ask for public patent propaganda. They will ask for extention of the patent system. Patent attorneys are corporate parasites.

Reminds me of the arms industry. No, we are not biased, because we suppy both sides. ha ha.

Gerontius said...

The reason I get upset about attacks on patent attorneys is that they are normally based on the misconception that we get paid to obtain patent protection for our clients. Wrong, we get paid to TRY to obtain patent protection for our clients.

How does this affect the argument?

First, few people campaign for the complete abolition of patents, so let's assume that there will be patents. Something that people outside the profession may not be aware of is that patents attorneys are not short of work - the big problem facing the profession at present is not shortage of work, but shortage of attorneys to deal with it. There is therefore no motivation to create a huge new realm of patentable subject matter.

Second, there will always be lines drawn in the sand between patentable and unpatentable. These lines can never be completely clear, so there will always be something to argue about, and the arguments are where attorneys make their money. Consequently, it does not matter where the line is drawn from the attorney's perspective.

True, if a new line is drawn that is a long way from the current line, applicants who are currently on the border may well give up. But I could then go back to patenting chairs and ion smashers like what I did before I got into this whole excluded subject matter thing. Personally, I'd probably be happier doing that as they are far easier to deal with and I might not have to fly to Munich twice a month for oral proceedings.

Nia said...

In a rather less serious vein; IPKat may not have found much on being Nice To Patent Attorneys, but there is a Be Nice To Lawyers Day (October 5th apparently) -

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