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Wednesday, 9 September 2009

Not enough to make a Kat laugh ...

It's sometimes said that cats have no sense of humour, a proposition that the Kats would keenly dispute. However, every so often something happens that makes one of them pause for reflection. One such event was an encounter between this member of the IPKat team and the Dilbert cartoon displayed above, kindly drawn to his attention by Pinsent Masons partner Iain Connor.


The first panel of the triptych expresses the proposition that all future ideas are already covered by over-general patents, a premise with which many US readers will readily resonate -- though one which the less generous patent laws of Europe would render inappropriate. The second panel appears to be a conceptual disjunction. Is the sudden switch from patents to trade marks a deliberate ploy to draw the reader's attention from the field of innovation to that of branding, since (unlike ideas) all future brands have yet to be covered? Or is it a consequence of the common misconception among laymen that the monopolies conferred by patents and trade marks are synonymous?

If the second panel puzzled the Kat, the third one confused him totally. Why should the fact that one takes cases on a contingency basis be the trigger for the requirement that one knows how to be a lawyer? Is this perhaps an American in-joke, or is there something completely obvious that the Kat, wearing his normally analytical cap, has overlooked by an attempt to over-intellectualise a good joke? Readers' comments are invited, particularly if they can explain the caption. There's also a poll in the left-hand side bar, for those who are interested.

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32 comments:

Derek said...

If one is paid by the hour, as opposed to on a contingency basis (when one only gets paid for "getting it right"), no knowledge is necessary - the money keeps coming in as long as clients do. In the real world, legal ethics and the thought of malpractice claims moderate that extreme position, but this is after all a cartoon.

Anonymous said...

If you take a case on a contingency basis, you only get paid if you win, which requires (usually) a degree of competence.

On a non-contingency basis, you get paid win or lose, and so it doesn't matter whether you know how to be a lawyer (even if you are a lawyer).

Anonymous said...

Jeremy,
I am so sure that you really do understand the last caption!

Anonymous said...

I think the third one is a joke - suggesting that you don't need to be a "good" lawyer because you'll get paid just because you are "called" a lawyer... I think cases on contingency means that you only get paid a % of the money won by your client... and if u have to make your client win, you need to know how to be a (good/real) lawyer.

Anonymous said...

Poor innocent Kat. The third panel cynically suggests that if your client is paying you regardless of success, it doesn't matter if you don't know how to be a lawyer.

koolkidz said...

I took the last frame to imply that losing cases impacts profitability only when you work on contingency. Catbert tends to focus on the bottom-line.

goldenrail said...

I read the last frame in this way: knowing how to be a lawyer only matters on a contingency basis because if you don't know what you're doing, you'll probably lose. If you lose on a contingency fee case, you get no money. If you lose on a hourly fee case, you still get paid.

Anonymous said...

Jeremy - I think you have rather over-intellectualised it. Lawyers on a contingency basis only get paid when they win. Other lawyers get paid on hourly rates regardless of whether they win or lose and, by implication, regardless of whether they are good.

Simon Bradshaw said...

I assumed the gag in the third panel is that you only have to worry about not winning if you take cases on a 'no win, no fee' basis.

(Yes, I'm aware that in the real world it doesn't work like that; that English CFAs aren't quite what US lawyers would call 'contingency'; and above all that at some point most of your clients would notice that you don't actually win.)

Gareth Dickson said...

It simply means that on a straightforward "per hour" basis a lawyer gets paid whether (s)he is good or bad at being a lawyer. On the other hand, if you've taken a matter on a contingency basis then you only get paid if you win your case, which (usually!) means you have to know what you're doing...

Gareth

patently said...

As I see it, the joke is that it doesn't matter if he's hopeless, so long as he bills hourly.

Dilbert jokes are usually in the third pane, so I'd only expect to see set-up in the first two. The patent/tm switch is irritating, and is (I think) an error on Adams' part. Or it may be a very knowledgeable insight that it is easier to bluff your way in trade marks than in patents, where you have to display understanding of complex ideas. But I would say that, as a CPA/EPA!

Gentoo said...

Here's one explanation.

Panel 1

Dilbert is a software engineer. He has discovered that software patents issued by the USPTO don't need to cite a specific implementation, he read a (slightly dated admittedly) statistic that 58% of software patents issued by USPTO cited no prior art, and that the system can encourages novelty through obscurity.

Panel 2

because he's a software engineer and not a lawyer, he might be a bit confused but he's probably noticed the cost of all IP litigation is expensive, that rather than improve drafting of IP law to ensure the scope is as intended, there is a tendency draft by litigation, yes DMCA I'm looking at you, and lexmark, and those garage door openers for starters.

Then there's the nonsense arising where although DeCSS was put through the legal wringer making it difficult for someone in the USA to watch legally purchased DVDs except on specific hardware, whereas utilities such as cdrecord that do a bit-by-bit copy for later burning is not affected.

Panel 3

Well this is a tricky one. If you have been following that pile of nonsense (a safe word) currently at the stage of Novell seeking an en banc hearing to remind the Appeal Court how Copyright Law works, you will know that there seems to have been quite a lot of dodgy lawyering going on, which has necessitated a lot of expensive lawyering by Novell, IBM and (coming up on the rails Autozone)

But the good news for SCO's lawyers is that got their money upfront rather than taking a share of the damages,

How was that?

Gentoo said...

forgot to sign previous post

"Gerry"

Francis Davey said...

If you work on a contingency fee you only get paid if you win, so obviously it matters if you actually know what you are doing. Many clients in England (and therefore in the US in spades) may believe their lawyers don't know what they are doing but they have to pay them nonetheless.

That some lawyers really don't is, I am afraid, a well documented fact. I know people who make a good living in professional negligence who directly benefit from this sad truth.

So, the last panel is clear and not unfair.

The segue from panel 1 to 2 works because both patents and trademarks come under the umbrella heading of "intellectual property". In many jurisdictions firms hold themselves as practising in "IP" and some court systems have courts dedicated to IP, even our own civil procedure rules lumps them together in CPR 63.1(1)(a) as "registered intellectual property rights". I am sure Scott Adams knows well that they don't cover the same rights, the implication is meant to be a looser one: that IP lawyers are doing well so maybe this is a market we should enter.

Sense of humour failure perhaps? Many Inns of Court have classic cartoons such as the lawyer milking a cow with both parties pulling at either end. It is meant to amuse not be accurate.

Anonymous said...

I think it's just a general pop at lawyers in general with Intellectual Property used as a medium.

1st Caption - Either they're inventors or possibly patent agents (I don't read Dilbert). The guy in white has either decided that there is no money in coming up with good ideas as they will already be covered by an over-general patent, or that there is no future for a patent agent because everything has already been covered by patents.

2nd Caption - The idea is that, following on from the first caption, as there is no money in ideas/patents, they may as well choose another line of work. Presumably trade marks are thrown in there merely because they normally get lumped in with patents as Intellectual Property and the cartoonist had to choose some sort of contentious area of law for the joke to work.

3rd panel - It's saying that lawyers who work on a contingency basis actually need to work/know the law so that they win cases and get paid, whereas non-contingency lawyers get paid whatever happens and so don't.


It's not very funny.

Anonymous said...

Argh! In the space of time between reading this at work, and getting some free time at home, the number of comments has jumped from zero (leaving me free to make my point and enlighten the IPKat) to 14, almost all making more or less exactly the point I was going to...

To move on, then - presumably if you assume that judges (and juries, where appropriate) always make the right decision, then it doesn't matter how good your lawyers are. So lawyers are either ripping off their clients by charging for unnecessary work, or they are causing miscarriages of justice by luring judges and juries into making the wrong decision. Discuss.

Anonymous said...

Furthermore, in the third pane, why has Dilbert turned into a small, red, cat-thing?

Francis Davey said...

A general comment (to everyone): reading and understanding a cartoon series helps you get into the mindset of the author and the community they are addressing.

Eg, if you aren't a science/web geek reading and making an effort to understand xkcd is a great way to grasp the way that subculture thinks (I have set this as an exercise).

There is a whole world of people out there who do think Dilbert is hilarious most of the time and feel it relates strongly to their own lives. Learning to adjust your mindset so that you find Dilbert really funny is a great way to understand that world.

Its like having to adjust your mental outlook to read Герой нашего времени or the dream of the red chamber and just as worthwhile.

Gentoo said...

@Anonymous 9:48pm

Well done, it's called "irony" even though Scott Adams is (gasp) American.

Not many techies watching SCO v IBM, SCO v Novell, (list continued p94) or even i4i v Microsoft are laughing. (Let's avoid ISO 29500, for the purposes of harmony.)

They'd like to work without a tithing++ by lawyers and others taking their cut out from a system that has been perversely distorted into the opposite of its original purpose of enabling innovation.

If consumers were to work out what it is costing them, they'd join the techies on the barricades, albeit downwind (I'm a techie, I can laugh at myself)

Anonymous said...

This (formerly UK-based, now AU-situated) attorney, thought it was one of the funniest Dilbert strips he has seen.

Anonymous said...

but surely this should be enough - http://www.savagechickens.com/2007/11/patent.html

Anonymous said...

Hmm - not only a dig at lawyers, who allegedly are able to exploit their clients' ignorance in order to charge high fees unrelated to their level of success, but possibly also a message that trade mark law is a particularly murky area, ripe for confusing clients and getting lots of money without actually having to be good at the job...

Still, I think it's funny!

Anonymous said...

In the immortal words of Dogbert:
"Bah!"

William Shakespeare said...

The first thing we do, let's kill all the lawyers

(Henry VI)

Gerontius said...

If I worked on a contingency basis, I'd be a pauper. But I object to the suggestion that I'm exploiting my ill-informed clients or earning a tithe off of rubbish inventions.

I am always honest with my clients. I will tell them if their (alleged) invention is not patentable in Europe and they would be best spending their money elsewhere. 9 times out of 10 they don't believe me or, if they do believe me, decide to ignore my advice and give it a go anyway.

Can someone please explain to me the mindset in which you ignore the advice you've just paid £250 an hour to receive? If it were advice saying "yes, send us lots of work" I could understand skepticism. But when it's advice saying, "trust us, don't give us any more money to pursue this" surely that's a sign that you're onto a loser?

Then, when they get their search report from the EPO saying "you're having a laugh!" do they take the chance to grab their refund of the examination fee and run? No they do not. They keep on going despite the second opinion telling them they don't have a patentable invention.

Basically, it doesn't matter at all to lawyers what is and is not patentable or what they tell their clients - there will always be people who think their idea is great and they deserve a patent and will pay a patent attorney to try and get it for them.

I've never understood the mentality. Please can someone explain.

Anonymous said...

Typical Dilbert cartoon, in that it is both cutting (he *does* have a point) and slightly mistaken (because: a) the existence of overly broad patents does not prevent from earning money from new ideas; and b) the apparent mistake between patents and trademarks is really unforgiveable).

Now, Scott Adams is not a techie himself, but he DOES have a typical techie fault, namely the tendency to pontificate on subjects about which he's in fact completely clueless. This he has shown previously with singularly misguided rantings about evolution.

Anyway, the fact that such misconceptions circulate about patent shows that we patent professionals still need to improve how we explain the patent system to the public, in particular to people so fundamental for our profession as those developing the technologies we aim to protect. And the fact that somebody like Scott Adams feels free to rant about something he clearly is so ignorant about as evolutionary biology and paleontology also shows that, unfortunately, there's no amount of explaining that's going to convince some boneheads. Just ask Richard Dawkins.

Anonymous said...

If I were in stand up comedy the last person I'd want in the audience would be a Kat - in deconstructive mode. Most comedians are onto a winner with any lawyer joke.

"I had a lawyer in the back of my cab once ....", and without even getting to the punch line, we're all (like the canned laughter on US sitcoms)in complete hysterics.

Anonymous said...

Re Gerontius, some people will not be advised:

The hemi patent sketch

Client: Hello. I would like to sue someone for patent infringement.

Attorney: Certainly sir, in which jurisdiction?

Client: At the world patent court.

Attorney: [ Face clouding over] But Sir, there is no such court.

Client: There must be, I had a judgement from it last year.

Attorney: You cannot have a judgement from a court which does not exist.

Client: Well I bleeding well got one.

Attorney: You’re a loony you are.

Client: Why should I be tarred with the epithet loony, simply because I chose the most convenient judicial body. I’ll have you know that Mr Dupont of the Dupont Clothing Inc went to the same court and won. So if, by implication, you are calling the inventor of the self removing trouser a loony, I’m afraid I shall have to ask you to step outside.

Attorney: All right, all right, so you want to sue. Did you try in any other jurisdictions?

Client: Yes, at the European Patent Litigation Court.

Attorney: You are a loony!

Client: Look I have a European Patent, it’s quite logical that I should litigate at the corresponding European Judicial instance.

Attorney: [Recovering his composure] Well can I see a copy of the judgement then?

Client: There you go my good man [hands over a document]

Attorney: This isn’t a judgement from a European Patent Litigation Court, it’s a judgement from the County Court of South Wales, with the word “Gwent” crossed out and “European” written in crayon!

Client: The man didn’t have the right form.

Attorney: What man?

Client: The man from the counterfeiting detector unit

Attorney: You mean the loony detecting unit!

Client: It’s people like you what cause unrest.

Attorney: So there’s a counterfeiting detector unit?

Client: Yes, from the department of Trade and Industria.

Attorney: The department of Trade and Industria?

Client: Yes, it was spelt like that on the van. I notice these things. Anyway, since my European patent was published last year, it was a cinch to copy the invention. They told me I should grant a compulsory licence to avoid being fined.

Attorney: And how much did they charge you for this advice?

Client: Two-hundred quid..... and forty for the unicorn.

Attorney: What unicorn?

Client: The one they kept in the van.

Attorney: A unicorn, almost as mythical a beast as the European Patent Litigation Court. Is everything about you fake?

Client: I’ll have you know that the first Comptroller of the British Patent Office kept an entire menagerie of Pan-European Intellectual property instances in his garden shed.

Attorney: No he didn’t.

Client: Did!

Attorney: Didn’t!

Client: Did, did, did, did, did and did!

Attorney: Oh all right then.

Client: Spoken like a true gentleman sir, now can I sue at the world patent court or not?

Attorney: I promise you that there is no such thing - you have to sue separately in every state.

Client: In that case I’d like to sue at the ASEAN regional Intellectual Property, small claims and defective noodles court.

Attorney: [Pensively] Defective noodles.... hmmm.....

Client: It concerns my world patent WP-09/000001

Attorney: Of course it does. So you want to litigate for infringement of this non-existent IP.

Client: Half-IP.

Attorney: Half-IP!

Client: It suffered a partial accidental anticipation.

Attorney: You’re off your trolley. In fact, after you gnawed through the leather straps and got off the trolley, you left the funny farm entirely and started a new life in Exeter with a complimentary lifetime supply of lithium-flavoured boiled sweets.

Client: Look, if you intend by that utilisation of an obscure colloquialism to imply that my sanity is not up to scratch--or indeed to deny the semi-existence of my patent--I shall have to ask you to listen to this.....Take it away, the non-existent orchestra Leader!

[Musical interlude – Eric the half-IP]

MaxDrei said...

Well done Jeremy, for flushing out the Hemi-Patent sketch, which I found loads funnier than the cartoon. Paul Cole is a fan of Norwegian parrots. I wonder....

Mark Anderson said...

When I first saw the red thing in the third caption I thought it was the devil (some readers may recall a comic strip from their youth where the central character was advised by his good side and his devilish side who respectively whispered in his ear until he made a final decision). Now I think it is a Kat. Is there something we should be told?

Anonymous said...

The red thing in the third panel is a character called "Catbert". As I understand it, Scott Adams didn't actually name the cat himself, but as the strip already had a dog called Dogbert and a rat called Ratbert readers made the obvious assumption when he introduced a cat character.

Scott once made the comment that "people in HR are like cats; they look cute and they don't care whether you live or die" and Catbert is based on this - he works in HR in Dilbert's company and makes life unpleasant for the workers whenever possible.

Anonymous said...

Ha, very true. Sadly in our place of work, those in HR don't even have the compensating feature of looking cute.

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