Taking Patent Reform to the Banc

The beautiful and talented Donna Wentworth recently called me a "Stupid Patent Avenger." While I'm usually not tickled when people use the word "stupid" to describe me, I think she meant it in a nice way. I like intellectual property. There is supposed to be a delicate balance between authors' or inventors' rights and the public's rights, though, in order to best promote innovation and creativity. So I don't like it when a few people abuse IP and make IP lawyers all look greedy and evil. That's why I'm here doing public interest litigation in the Cyberlaw Clinic.
Mostly I work on copyright cases these days but now I have a true Patent Avenger project. Last summer at a Free Software Foundation seminar I met Dan Ravicher, a smart Patent Avenger and founder of Public Patent Foundation. The two of us are teaming up to write an amicus brief for the Court of Appeals for the Federal Circuit in a rare en banc case, in which the Court will "reconsider its precedent concerning the drawing of adverse inferences, with respect to willful patent infringement in obtaining legal advice and withholding that advice from discovery." At first blush, this may sound like a petty evidence issue but the adverse inferences are unfair, illogical, prejudice small businesses and generally discourage all kinds of desireable conduct and encourage a lot of predatory behavior by patentees and game playing by both patentees and defendants. Briefs are due November 3rd. When you get a nasty letter from a patent holder, you are supposed to run out and hire a patent lawyer to read the patent, analyze whether you are infringing it, get the patent's file history from the Patent and Trademark office and painstakingly pore through it, then search around for reasons the patent might not be valid, and then give you a written opinion about your potential liability. (You can also send it to Chilling Effects but that's not an affirmative duty). Years later, if you get sued, you can choose to waive the attorney client privilege and produce this letter opinion to show that even if you infringed, you aren't a willful infringer and should not be liable for treble damages. If you don't produce the opinion, the jury or judge is allowed to infer that your lawyer warned you your conduct was likely infringing and if you did not obtain advice at all, to infer you were reckless and disrespectful of the patentee's rights.
The result is that opinion letters, instead of being frank and honest because the attorney-client privilege will protect them from discovery, are written with the expectation that they'll be the get-out-of-treble-damages card if the case ever goes to trial and found to infringe a valid patent. If you can afford the cost of hiring a qualified patent lawyer every time you get a nasty letter suggesting you may wish to license someone's patent.