What Five Things Would You Change About IP Law and/or Practice?

The [Non]Billable Hour, includes a regular feature known as Five-by-Five.  Each month or so, author/lawyer Matt Homann gets five experts in an area of law to give five responses to a question about the law. 

The most recent episode is the IP Edition.  Matt was able to bring five IP attorneys together to answer the question: What five things would you change about IP law and/or practice? I was lucky enough to be included in the panel.  Here are some snippets:

Stephen Nipper: Embrace the future.  Lets face it, the Internet is changing the practice of intellectual property law. Many of the businesses we used to rely on for patent copies, copies of file wrappers, etc., have had to evolve or die as more and more of the USPTO’s data and knowledge is made available on the Internet for free.  Do you really think that is the end of it?  Do you think that it is not going to affect IP attorneys too?  I’m afraid that you’ve got a big surprise coming.  It is time to start thinking outside the box about how we provide our services, how we bill for them and how clients find us.

Douglas Sorocco: Everyone needs to take a deep breath regarding software patents.  The end of the world is not near, the seas are not going to be flooding our coastal cities and software  patents are not stifling development of new and useful tools and processes.  Software developers are simply going to have to become better business people and accept that nothing is free and patent clearance searches must be made an integral part of the development process.

Martin Schwimmer: [A] tremendous amount of what trademark owners hate about Internet activity consists of third parties using their marks to divert traffic to unauthorized sites.  We saw this concept in cyber squatting litigation, and now see it in the use of keywords.  Related to this is the development of the concepts of contributory and vicarious infringement.  It’s hard to get one’s hands around fly-by-night operators, so trademark owners go after the Internet service provider or registry or search engine.  I think these are the key areas in which we are going to see development in U.S. jurisprudence.

Dennis Crouch: Law School: Becoming An Attorney:  If you are a scientist or engineer who is thinking of becoming a patent attorney, my advice to you is to broaden your outlook.  When you go to law school, don’t just worry about becoming a patent jockey – rather you are becoming a lawyer.  Learn to think like a lawyer and talk like a lawyer.  Take classes that have nothing to do with patents and make as many friends as you can. (Your classmates will likely refer some of your first clients).  Law school provides a great transition point in life, and there is no requirement that pushes an attorney with an engineering degree into patent law.  Take time to enjoy the freedom. 

Mark Partridge: Require ADR before litigation: Litigation is extremely expensive, almost shockingly so to most clients, and prohibitively so to many. . . . My change would be to require all trademark litigants to try forms of alternative dispute resolution before proceeding with the expense of discovery and trial.  As both a mediator and as an advocate in mediations, I know that facilitated negotiations can lead to resolutions at substantially reduced cost.  Unfortunately, ADR is underused for many reasons. Clients don’t want to be the first to blink. Litigators don’t want to appear weak, loss control, or disclose information. Whatever the reason, the hesitancy to use ADR (either mediation or early arbitration) could be overcome by making it mandatory. Some jurisdictions already do. More should. An early effort to settle, facilitated by a competent neutral could, I believe, save the courts and clients a great deal of money.

The Authors can be seen on the web: Nipper, Sorocco, Schwimmer, Partridge, Crouch, and Homann