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IP, Non-IP

My “Twitter Friends”

My blogroll and twitter list features a number of criminal defense blogs and CDLs, and yes, I do read each of them on a regular basis. In fact, I generally have an interest in a number of issues relevant to criminal defense, like search & seizure, right to counsel, and the death penalty. What may surprise you, however, is that these issues have nothing whatsoever to do with why I read these blogs.

You see, in addition to reading these blogs, I generally converse with most of these authors on a semi-regular basis. Although we might share some common interests, both personal and professional, our exchanges are more conversational than promotional. We are not gurus, game changers nor change agents. So why the connection? I can’t speak for others, but because of my experiences as an IP attorney, I identify with the CDL community.

How’s that? Well, most of my career, before joining Patent Calls, has been spent enforcing patent rights through litigation. My clients typically acquired patents from owners that were selling for any number of reasons, and they depended on me to help separate the good opportunities from the bad, help develop an enforcement strategy, and ultimately execute the game plan, including filing lawsuits, negotiating settlements, conducting discovery and (god forbid) going to trial.

What have I learned from this experience? Aside from IP licensing and litigation strategies, I really learned a lot about perception of patent owners.

But first, a non-sequitur. During one trial that turned out to be a particularly bad experience, our pre-trial hearing was interrupted because a jury came back with a verdict in a criminal case that had gone to trial the day before. While we waited outside the courtroom for our chance to go back in and fight over money, I overheard someone ask, “I wonder how it’s going?” I looked out the second story window toward the ground below, and watched a man in a jumpsuit, about my own age, being led into a van in shackles. “Not good,” I replied. “But at least our trial won’t end that way.”

In the IP world: My clients were generally assumed to be the bad guys. They didn’t actually invent the thing described in the patent. He didn’t employ hundreds of people to develop a product or line of business to sell or use the invention. But our opponents, on the other hand, did have a substantial business investment, not to mention employees depending on their jobs for their own livelihood. My clients were just “in it for the money.”

Opponents called my clients “trolls,” and intentionally inflammatory and derogatory term. Why? Dehumanizing your opposition makes them easier to hate … And easier for others to hate.

My clients owned patents. My opponents developed products, usually without any knowledge of the patents in the first place … This fact is completely irrelevant. But to the opponents, it should be dispositive. The fact that their product just happened to infringe my clients’ patents was a mere “technicality.” They didn’t mean any harm by violating the law, so we were the evil ones for exploiting a “loophole” that allows my client to recover.

In the CDL world: the clients are dehumanized as “the defendants” or “the accused.” By the time you get to trial, they’ve been investigated, arrested and arraigned. A judge has decided a crime has been committed, and the DA has evidence to suggest that client is responsible. Juries often automatically assume the client must have done something wrong, or he wouldn’t be in the defendant’s chair in the first place. And god forbid you suggest that an improper search should exclude some critical piece of evidence. After all, the cop was just “doing his job,” and the lack of a warrant doesn’t change the fact that your client was hiding [insert contraband here].

The truth is, I did not mind being hated. I had a mission, and a plan … And the law was on my side. The fact that my opponents had to resort to such tactics only reinforced my belief that I was on the right side. Even still, it’s frustrating when the tactics work.

Of course, getting back to the young man being led away in shackles, it was a constant relief that the worst possible outcome in one of my cases still wouldn’t end like that. My CDL friends aren’t so lucky … But I know enough to know they wouldn’t have it any other way.

—UPDATED—

Here’s an example of exactly what I’m talking about. I’m not saying that patent owners are exactly like criminal defendants, or that my downside is anything like a CDLs downside. I’m saying that listening, conversing and understanding how CDLs do what they do helped me understand how I to better serve my own clients.

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  1. Pingback: Because You Did Miss It … 5 Least Popular Blog Posts Of 2010 « Gametime IP - January 5, 2011

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