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“Patent Professionals” and Patent Policy

In Survey of the Disruptive Impact of a First-to-File Switch, and on his facebook page, patent attorney and law professor Dennis Crouch asks “patent professionals” to “Please Respond to my Survey on Switching US Law to a First-to-File System.”

I’m trying to figure out why we should care what patent attorneys, of all people, think about patent policy. Why is there an assumption that their opinions on patent policy are especially relevant? If anything, patent professional are biased because of built-in incentives to favor maintaining a patent system. They are not objective at all. And training in engineering and law school in no way provides one with any special knowledge of policy or ethics issues. By analogy, do we care what an IRS agent thinks the tax rates should be?

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  • Dennis Crouch November 12, 2009, 8:16 am

    Stephan. First, thanks for linking to the survey and implicitly encouraging responses.

    I agree with you that anyone taking a survey will exhibit some bias. And, US patent professionals will likely exhibit systematic bias because their (our) chosen careers are likely aided by a strong patent system. Further, in-house counsel typically respond with a different bias than folks at law firms. Within law firms there is a split between prosecution and litigation. Likewise, biotech & pharma focused attorneys typically have a different viewpoint than do attorneys who work in other areas of technology.

    I don’t know if you have actually taken the survey. The survey asks a detailed question about particular potential changes in US patent law. That question does not ask whether it is good/bad policy. Rather the question asks about how disruptive a potential change would be. This is the type of question that is well suited for a patent professional to answer. Using your analogy, I believe that it would be appropriate to ask a Tax Professional to answer a question about the disruptiveness of a change in IRS form or filing date requirements. Patent attorneys deal with these issues on a daily basis and often work with a wide array of clients, it would be odd to say that they do not have any meaningful understanding of the potential impact of a change in a particular rule.

    Here, I do also ask whether the professional supports the potential changes. That response will be used to tease-out bias. Although there is still room for strategic behavior in the responses, I believe that I have designed the survey in a way that at least eliminates the most direct avenues.

  • Stephan Kinsella November 12, 2009, 9:55 am

    Dennis,

    Thanks for your comment. I’m not talking just about bias. I’m asking why the views of patent lawyers qua patent lawyers is even relevant at all. Lawyers have no more knowledge of what laws and policies are good than normal people. In fact, one could argue their sense of morality and ethics is corrupted to some degree by law school and practicing law.

    You say,

    The survey asks a detailed question about particular potential changes in US patent law. That question does not ask whether it is good/bad policy. Rather the question asks about how disruptive a potential change would be. This is the type of question that is well suited for a patent professional to answer. Using your analogy, I believe that it would be appropriate to ask a Tax Professional to answer a question about the disruptiveness of a change in IRS form or filing date requirements.

    But what is the relevance of a question about disruptiveness? Either it is, or is not, implicitly connected with some policy presumption or conclusion. If it is not, it’s utterly irrelevant. But I think it is: “disruptive” has negative connotations, so if you say it’s “disruptive” this is a critical assessment–a normative or policy opinion. One cannot criticize “disruptive” changes, unless one has some apriori view about the legitimacy of the system that is being disrupted. To take an example, some changes in federal laws or regulations might “disrupt” or hamper the ability of the state to arrest and convict drug dealers and tax evaders. I happen to believe all state laws that persecute drug users and sellers and tax “cheats” are immoral and evil. So I would be happy to have the enforcement of such laws “disrupted.” So disruption is only bad if you are disrupting something good. So do you see that there is an implicit presumption that the patent system is somehow good and legitimate, if you even ask about the potentially disruptive effects of a given change?

    Patent attorneys deal with these issues on a daily basis and often work with a wide array of clients, it would be odd to say that they do not have any meaningful understanding of the potential impact of a change in a particular rule.

    They do, but their opinion as to whether this change is good or bad–or disruptive or not–is colored by their normative assessment of the underlying system; and since this is almost universally going to be a pro-IP-system normative stance, they are just finding a way to repeat their self-serving policy opinions, dressed up in supposedly neutral, objective language.

    Here, I do also ask whether the professional supports the potential changes.

    But of course you don’t expect anyone but outliers like me to support something that is colored as “disruptive,” do you?

    In my view, just as I think no one who works for the state, or receives welfare from the state, ought to have a right to vote, patent attorneys who are basically parasitical beneficiaries of this artificial state legislative scheme should have no say so in IP policy. It’s the fox guarding the henhouse problem.

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