Patently-O Bits and Bytes by Juvan Bonni

18 thoughts on “Patently-O Bits and Bytes by Juvan Bonni”

1. 3

   The Mixon paper reminds me how much I am looking forward to the oral arguments later this month in Ericsson.
2. 2

   So can we finally get these geniuses in Congress and on the bench to stop talking about patent trolls, now that Robert Merges admits there’s no longer a troll problem (an admission he feels compelled to make in order to support his position that it’s better to infringe and have a product on the market than to negotiate a license beforehand and lose the opportunity cost of developing the product while the license is being negotiated)?
   1. 2.1

      What the F is Merges still doing in the patent sphere and why would anyone take him seriously?
   2. 2.2

      Where do you see the assertion in Merges’ paper that there is no longer a troll problem? I confess that I have only skimmed it, not read in detail, but I do not see such a concession.
3. 1

   Again, “Prof.” should not be permitted as a title unless full financial disclosures are given. I would suggest “Large Corporate Advocate with an a corporate appointment at university.”

   But–please–there is no scholarship in law journals.
   1. 1.1

      In the same vein, no article by a lawyer should be permitted unless a full client list is disclosed.
      1. 1.1.1

         Your attempt here squirrel just shows how out of touch you are – both with the LACK of a controlling set of ethics rules for professors of law AND with the presence of a controlling set of ethics rules for attorneys.
         1. 1.1.1.1

            As an attorney, what are your thoughts on the following scenarios:

            A) You wish to write an article advocating a change in policy that, while you believe it is correct, would be adverse to your client’s interest. Would you write it?

            B) You wish to write an article advocating a change in policy that, while you believe it would be incorrect, would be favorable to your client’s interest. Would you write it?
            1. 1.1.1.1.1

               Writing articles under my real name and posting positions here on the blog necessarily comprise some differences.

               My published articles include the proper disclaimers that the views expressed are those of mine and not my firm, nor my clients. Typically, my published articles are NOT policy-change advocacy pieces (and are more objective analysis of the law), but that would not limit me from writing advocacy pieces, as the disclaimer provided inoculates the ties to firm and clients.

               As to your B), such would never be entertained by me. There is a reason for the inclusion of the disclaimer, and it would be unethical to include such a disclaimer and then turn around and BE advocating for the client in an open article advocating a policy change. Of course, this would be different than being an advocate for a client and presenting a policy change position OF THE CLIENT’S.

               Here (as noted below in reply to Greg at post 1.1.3.2.1.1), the fact is that each and every post of mine is MY post, and is not advocating for ANY client.
      2. 1.1.2

         To which state of being out of touch, I will take the opportunity to share (again) my view that attorneys HAVE sets of ethical conduct regulations based on the fact of our proximity to the law setting functions of the various branches of governments.

         I have to wonder how it is that those teaching attorneys (and who are ALSO active in attempts to shape law more directly as through their “borrowed authority” and in “Friends of the Court” filings — that currently run completely unchecked — are not only held to no controlling standards whatsoever, but are somehow NOT held to even higher standards than attorneys…?

         Putting aside any jocularity at the adage of “those who cannot do, teach,” one should reflect on the driver (at least in part) of ethics constraints for attorneys is more in play for those who teach attorneys.
         1. 1.1.2.1

            Just to be clear: you believe that your behavior here is an example of a “checked” behavior that is somehow more “ethical” than the behavior of a typical law professor?

            Trying not to laugh … but thought I should ask.
            1. 1.1.2.1.1

               My behavior is absolutely ethical.

               Do not confuse sharp language (typically wrecking you) as an absence of ethics.

               (and let’s just skip your usual Accuse Others meme in reply, shall we?)
      3. 1.1.3

         In all seriousness, I do not entirely agree with the premise of your retort—i.e., that there is a moral analogy between a professor disclosing funding sources and a lawyer disclosing clients. Under the model rules (1.6) a lawyer may not “information relating to the representation of a client unless the client gives informed consent… .”

         In other words, under a strong reading of the model rules it would be an ethical violation for a lawyer to reveal the names of his/her clients unless the clients all consented to have their names listed. There is no corresponding worry that it would be a violation for a professor to list funding sources; quite the contrary.

         That said, if we want to talk about ethical violations, I would note that the Supreme Court of Louisiana has disbarred a lawyer for posting anonymous comments online about pending cases. There is an ethical violation that, perhaps, deserves more consideration in these parts.
         1. 1.1.3.1

            Upon re-reading, I notice that the last line of my response looks more menacing than I had meant. I did not mean to imply, dear Mr. Squirrel, that any of your posts appear to cross ethical lines. I had others in mind.
            1. 1.1.3.1.1

               Interesting link, Greg. The pertinent ethic rules in the case are captured in this passage from the case:

               “The lawyer stipulated that his conduct violated Louisiana’s versions of Model Rules 3.6 (trial publicity); 3.8(f) (prosecutors’ extra-judicial comments); 8.4(a) (violating rules of professional conduct) and 8.4(d) (conduct prejudicial to the administration of justice).”

               Aside from your misplaced aversion to pseudonymous and anonymous posting, and your dainty sensibilities (as a thin veneer over your inability to handle criticism), and of course MANY here post with a sense of “that’s an injustice” (which seems implicit in your criticism); however, all that being said, I do not see just who here strikes a chord with the actual case you provide in that someone with inside knowledge of an active case that they are involved with are commenting here on that case.

               Or are you simply misapplying the actual concerns of that case as a front to your own hurt feelings (and lack of ability to handle criticism of your views)?

               … and by the way, no one is going to mistake Squirrel as an attorney, thus your segue for introducing your point is rather shaky. Maybe instead of the focus on politeness, you spend that energy to sharpen your point on ethics concerns.
         2. 1.1.3.2

            I know the model rules would forbid such disclosure. However, let’s not pretend that attorneys don’t advocate for their and their client’s self interests. Without knowing who butters their toast, how can we know the veracity of their articles?

            In your view, all professors have to due to make their actions acceptable is to adopt a set of ethics guidelines that include it being unethical to disclosure the source of your funding. Viola! Since it would then be unethical to disclosure their funding, their articles are elevated beyond questioning!
            1. 1.1.3.2.1

               [A]ll professors have to due to make their actions acceptable is to adopt a set of ethics guidelines that include it being unethical to disclosure the source of your funding.

               Not quite. The disclosure of client confidences is not unethical because it is against Rule 1.6. Rather, Rule 1.6 exists because such disclosures would be unethical. That information does not belong to the attorney, so it is not the attorney’s to divulge.

               By contrast, the professor does “own” the information about funding sources. There would be no reason for a rule against the disclosure of such info.

               I will meet you at this far—it is ethically questionable for a lawyer to author a paper (or a blog post!) advocating for a certain position that affects the lawyers clients without owning as much up front.

               Regarding the academy, however, many fields require funding disclosures on all publications. I was a microbiologist before I became a laywer, for example. It was routine that published articles contained a “conflicts of interest” section, usually printed on either the first or last page of the article (“Dr. K own stock in GSK; Dr. L is a consultant to Pfizer; Dr. P sits on the scientific advisory board of KaloCyte LLC; [etc]”). This seems a salutary practice. To the extent that it is not already commonplace in legal academia, it really should be. Transparency and honesty are academic values in all ends of the scholarly world.
               1. 1.1.3.2.1.1

                  “it is ethically questionable for a lawyer to author a paper (or a blog post!) advocating for a certain position that affects the lawyers clients without owning as much up front.”

                  Hence, one of the benefits of pseudonymous or anonymous posting.

                  As I had so often tussled with Ned Heller and his refusal to actually FULLY engage a legal discussion on the merits, his posts here VIOLATED the BLOG rules here*** in that posts are ONLY to be those of a person’s own views and NOT made in a position for a client.

                  Yes, Greg, it IS a drawback to use your “real name” in part BECAUSE you are a know advocate for certain entities, and unless you make sure EVERY SINGLE TIME that you post something that is separated from your known advocacy positions.

                  In past discussions on this “meta-matter” I made no bones about the fact that each and every post of mine is MY post, and is not advocating for ANY client.

                  As with Ned Heller, he absolutely refused to be inte11ectually honest in his discussions because he refused to take the discussions where they needed to go, and he refused to do so BECAUSE he was actively advocating his client’s positions.

                  *** such rules were once upon a time very easy to find. After some of the discussions about those rules quite a few years back now, they became very difficult to find, and in truth, I am not certain that they are still even a part of the website.

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