tag:blogger.com,1999:blog-5574479.post2993053427367008011..comments2024-03-29T09:21:58.696+00:00Comments on The IPKat: The IP Lawyer's Nightmare: "But Everyone Else Does It"Verónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger13125tag:blogger.com,1999:blog-5574479.post-37541207075599345182013-05-21T18:02:41.444+01:002013-05-21T18:02:41.444+01:00MaxDrei, another good example is Britain's MPs...MaxDrei, another good example is Britain's MPs' expenses scandal. 'Everyone else is doing it' didn't work well then. Catonoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-70295758996889010402013-05-21T06:57:22.558+01:002013-05-21T06:57:22.558+01:00In the Corporate Family, when confronted with &quo...In the Corporate Family, when confronted with "but all my friends can do it", a variation on "but I'm the Mummy/Daddy and I say no", usually works (albeit less than elegant).Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-2839292579562333522013-05-20T11:23:22.856+01:002013-05-20T11:23:22.856+01:00"You have retained me to be your legal adviso..."You have retained me to be your legal advisor. I am advising you of the potential risk to the best of my ability. What you do with that advice, or how you act in response, is your own business. Please sign here, here and here to indicate that you have read and understood my advice. Also, please sign here to indicate your post-facto granting of permission for this meeting to be filmed."<br /><br />Joking aside, I used to run up against an unrelated but very similar scenario with an old client, who would always give me a hard time about the enormously broad claims their main competitor seemed to be able to get granted, while we struggled with intransigent examiners. I never really found a good response for that one.Richnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-24543170818400893892013-05-20T10:34:52.478+01:002013-05-20T10:34:52.478+01:00The anon who suggested "Let the Patent Office...The anon who suggested "Let the Patent Office deal with it" has (I suspect) never encountered the EPC's mother of all Catch 22 situations, the Art 123(2)/(3) "fatal trap". I wonder if he's American.<br /><br />With the wrong prosecution amendment to Claim 1 at the EPO, you end up with a useless Blue Norwegian patent, throughout 40 countries and 600 million end users. Client does not know when his cherished prosecution amendment doesn't pass muster under the EPC, but you do. What are you going to tell your American client when he ends up in the fatal trap? Perhaps "You made me do it"? Will that be enough to stave off the malpractice suit?MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-90881794661954659032013-05-20T10:28:53.666+01:002013-05-20T10:28:53.666+01:00Of course, I meant to say "probably not the m...Of course, I meant to say "probably <b><i>not</i></b> the most professional retort" (!)Joenoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-45013510719894729872013-05-20T10:05:06.215+01:002013-05-20T10:05:06.215+01:00Anonymous said: "Let the patent office deal w...Anonymous said: "Let the patent office deal with it, I'm just here to write up the stuff."<br /><br />The only problem with that is that you end up taking the flak when you get an official action merely reaffirming your original opinion. Taking an "I told you so" stance when the client will most likely have spent thousands of pounds with you is probably the most professional retort in that scenario!<br /><br />If it's a new client it's easy to say go elsewhere, but when it's an existing client a more tactful approach is probably needed. You wouldn't want to hurt their feelings if they're (in effect) paying your wage...Joenoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-82459766590750626602013-05-20T09:06:04.894+01:002013-05-20T09:06:04.894+01:00Well, one idea might be to collect newspaper cutti...Well, one idea might be to collect newspaper cuttings about people who did what everybody else was doing at the time, and came to regret it many years later when the sky fell in and consequences were visited upon them that were out of all proportion to the mischief back then. Show them to the Client and if the Client still insists on proceeding, well, you've done all you could to dissuade them.<br /><br />Clients are paying you to brief them fully enough that they never suffer, much later on, any nasty surprises.<br /><br />Chris Huhne got a very nasty surprise. So did Vicky Pryce. So did Uli Hoeness (of Bayern Munich) 12 years after he set up his Swiss bank account to cheat the Internal Revenue. He was only doing everybody else was doing at the time, and now he's very likely to be going to prison.MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-72880154929651306762013-05-19T21:47:05.313+01:002013-05-19T21:47:05.313+01:00How about suggestions to patent attorneys on how t...How about suggestions to patent attorneys on how to deal with clients who would like protection for manifestly unpatentable stuff?(Blatantly non-novel, quivering masses of obviousness, business methods, etc.)<br /><br />"Let the patent office deal with it, I'm just here to write up the stuff." ?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-38653469411990042562013-05-17T15:55:43.984+01:002013-05-17T15:55:43.984+01:00Spot on. Some responses I've used:
"They...Spot on. Some responses I've used:<br /><br />"They have more money and can afford the lawsuit."<br /><br />"Do you really want to be like them?" (Useful in derogatory advertising scenarios)<br /><br />"The law isn't always in sync with common practice."<br /><br />"They didn't have the advice of good counsel." (That usually is met with the retort, albeit only with the eyes, "(and I wish I didn't either).")Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-14923865710677534742013-05-17T14:52:50.136+01:002013-05-17T14:52:50.136+01:00Very interesting article. Thank you.Very interesting article. Thank you.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-106163109245467942013-05-17T12:59:44.233+01:002013-05-17T12:59:44.233+01:00Anonymous (12:39:00 BST)
Thanks. There is a more ...Anonymous (12:39:00 BST)<br /><br />Thanks. There is a more up-to-date version of the McMurray quote, based on a 1980's television program--Alf--about an alien who becomes a house guest of a middle class American family. To quote Alf, "an alien has to do what an alien has to do." I don't know which quote is more apt for the subject matter at hand.Neil Wilkofhttps://www.blogger.com/profile/04200865773480720037noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-49648104079272585262013-05-17T12:39:39.347+01:002013-05-17T12:39:39.347+01:00Good article, Neil. It's a sad reflection on m...Good article, Neil. It's a sad reflection on modern society that more and more people regard the only crime as "getting caught doing it". When I sat for my first patent attorney exams back when disnoaurs walked the earth, the practice exam usually had a conflict of interest question. In those days, the answer was, get rid of both parties. However, I watched with some confusion as attorney firms kept one of the clients - and in one case kept BOTH clients, physically walling off one team from the other and forbidding them to associate with each other at all!<br /><br />I personally am with Will - or, to paraphrase another Hollywood icon (Fred McMurray in "The Rains of Ranchipur"), a man's gotta do what a man's gotta do". "But everyone does it!" is usually an indication that it's something that a man's not gotta do.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-19021882556434259662013-05-17T12:37:53.879+01:002013-05-17T12:37:53.879+01:00Fantastic post, sir. Thank you.
Something I en...Fantastic post, sir. Thank you.<br /><br /> <br /><br />Something I encounter a lot. My own preferred response to such enquiries shall remain confidential (otherwise I’ll lose my competitive edge *winks*), but I will say this: “everyone else does it” is not a legal defence. Fact. It may ultimately lead Parliament/Congress to effect a change in the law (because the best laws should reflect commercial reality and/or how people live their lives), but until then, it can only give a degree of commercial comfort. And even then…Anonymousnoreply@blogger.com