07 October 2012

Dangerous Opinions

Opinions AheadA couple of weeks ago I received a call from a person – let’s just call them ‘X’ – who is involved, in a professional capacity, in one of the Australian Federal Court matters about which I have written over recent months.

To be clear, X was perfectly courteous, and the conversation that we had was not at all inappropriate.  While I do not know X personally, they are well-known and highly-regarded within the Australian IP professions as a person of the highest integrity.  X did not pressure me to change anything I had written, but simply wanted to provide some additional background information so that I would have the opportunity to ensure that my reporting was as factually accurate as possible.

It seems, additionally, that some concerns had been raised about what X’s clients might infer if they were to read my articles on the case.

With all due respect to those involved in the case (and I mean that sincerely, not in the disingenuous way the phrase is sometimes used in legal argument), what I would hope anybody reading any of my articles would infer is that they are written by a patent attorney who is not – unless expressly disclosed – privy to any inside information regarding the matters under discussion, and that they provide commentary comprising a mix of facts and personal opinions.  I credit the readers of the Patentology blog with intelligence (an assumption generally supported by the quality of comments and other feedback I receive), and I would hope that X’s clients, like any other reader, would have the reading comprehension skills necessary to distinguish between fact and opinion.

However, there are undoubtedly dangers in expressing opinions online, particularly when those opinions relate to legal proceedings and might reflect on matters such as the correctness of a judge’s decision, or the effectiveness of a legal team’s strategy.  There is sometimes a fine line between writing commentary which may provide some insight into a matter for readers who are not experts in the area, and writing something which might be perceived as prejudicial or defamatory.

It might therefore be useful to set down a few of my thoughts on these issues, and suggest some of my preferred options for people who disagree with me, who think I have got something wrong, or who feel aggrieved by something I have written.

WHY WRITE OPINION?

Conventional legal writing is fairly formulaic, and sticks closely to the facts.  The usual form of a case report, for example, is to open by explaining what the case is about, and the legal issues that arose.  This normally leads into a more detailed discussion of the facts and relevant law, and a summary of the court’s findings.  The article may then conclude with a few ‘lessons’ from the case, such as tips on what people/companies in similar situations might do differently in order to avoid adverse results of the decision.

If you are a lawyer, you might find this type of report useful, because it gives you a shortened summary of the case and its key issues without having to read the full decision (at least until you really need to).  But it is not very exciting.  The opening paragraphs give the average reader no real reason to read on.  Indeed, the only place you might find anything remotely resembling an opinion, or any useful advice or commentary, is in the concluding paragraphs.  Assuming, of course, you read that far!

I want people to read this blog, and by ‘people’ I do not mean (just) other patent attorneys and lawyers.  I would like to think that at least some of my articles manage to be entertaining and/or thought-provoking, as well as (hopefully) informative.  I believe that this requires taking a position on the issues discussed.  And, quite aside from anything else, I do this in large part because I enjoy it and get something out of it myself – but that is only true if I am expressing my opinions, and not just repackaging news.

When you look at the opening paragraphs on the home page of the Patentology blog, you will generally find some form of opinion up-front, before you get to the ‘Read more »’ link.  For example, in the five most recent articles you will find the following opinions within the first few paragraphs:
  1. that prior art documents should generally be read as at their date of publication, and not at some later date (such as the priority date of a claim), except in very specific circumstances – an issue on which the courts have been divided;
  2. that you maybe should not try to patent your idea for a smartphone app – even if it is potentially patentable;
  3. that innovation patents can sometimes be infringed before they have even been filed;
  4. that a judge of the New Zealand High Court was ‘courageous’ (in the Yes, Minister sense) in finding that NZ courts have jurisdiction to decide on infringement of US patents; and
  5. that IP Australia’s proposals to ‘fix’ the innovation patent system would, in fact, eviscerate it.
It is my hope that these positions (which are genuinely held, and not gratuitously tendentious) will ‘hook’ a few readers each, and that their interest will be justified by the remainder of the article.

The most gratifying thing for me is when a reader is provoked to comment after the article, or to send me an email with their own thoughts.  I do not care whether they agree or disagree with me – the whole point about opinions (as opposed to facts) is that they are open to debate.  I always try to reply to emails and comments, although sometimes other commitments get in the way (so my sincere apologies to anyone who might be thinking I have ignored them).

Another thing about opinions – and about discussing them with others – is that they can change, as new information and points of view come to light.  One of my personal favourite articles (and one on which I have had the most positive private feedback) is Why IP Professionals Must Take ‘Gene Patent’ Opponents Seriously which is, not by chance, illustrated with an image of a hand waving a white flag.

In short, I write opinion because I believe that if this blog were not opinionated it would not be very interesting, for me or for anyone else.  Certainly it would be redundant – if you just want to know the facts of what is happening in the world of patents and innovation there are plenty of other sources.

THE RISKS OF EXPRESSING OPINIONS

There is a great piece over on The Conversation, entitled No, you’re not entitled to your opinion, by Deakin University philosophy lecturer Patrick Stokes, in which he asks:

So what does it mean to be “entitled” to an opinion?

If “Everyone’s entitled to their opinion” just means no-one has the right to stop people thinking and saying whatever they want, then the statement is true, but fairly trivial. …

But if ‘entitled to an opinion’ means ‘entitled to have your views treated as serious candidates for the truth’ then it’s pretty clearly false. And this too is a distinction that tends to get blurred.

Stokes explains that, in his classroom, students are only ‘entitled’ to views for which they are able to put forward a credible argument.  One of Stokes’ concerns is that:

The problem with “I’m entitled to my opinion” is that, all too often, it’s used to shelter beliefs that should have been abandoned. It becomes shorthand for “I can say or think whatever I like” – and by extension, continuing to argue is somehow disrespectful. And this attitude feeds, I suggest, into the false equivalence between experts and non-experts that is an increasingly pernicious feature of our public discourse.

This phenomenon places people with expertise in particular subject matter, myself included, in a difficult and potentially hazardous situation:
  1. on the one hand, the expert might find that in certain circles – and even in the mainstream – their opinions carry no more weight than those of non-experts (witness IP Watchdog’s Gene Quinn taking on Ars Technica’s Timothy Lee, or me taking on Ars Technica’s Joe Mullin or, indeed, anybody who actually knows anything about patents taking on anybody at Ars Technica); and
  2. on the other hand, in some circles our expertise might get us into trouble precisely because it can be argued that our opinions will be afforded greater weight or significance than others’ (witness Gene Quinn being sued for defamation, an occurrence for which I am glad to say I can offer no personal parallel).
Which brings me back to the phone call from X.  Following the discussion, I considered X’s comments carefully.  They amounted to a suggestion that I had made a factual error, that I had misrepresented an aspect of the court proceedings, and that one of my comments could be construed as a criticism of the strategy of one of the parties’ legal team.
 
However, on re-reading what I had written, I decided that I did not agree with X – at least, not enough to warrant amending the article (which is ‘cheating’, and something I generally avoid) or publishing a correction or clarification.  On one point, X might have been right, but it would have been difficult for me to have inferred the true situation based purely on the published decision of the court.  On the others, I can see why X read my words in a particular way, which was slightly different from my intended meaning, but I believe that this was largely a result of X’s closeness to the case, perspective and the influence of inside knowledge.
 
It is simply not possible to have an unprejudiced view of a matter in which you are involved as a professional advisor.  Nor are you generally able to speak freely or to express personal or professional opinions on such matters.  This is why, on the rare occasions on which I write about matters in which I, or my employer, are directly involved, I generally stick to straight reporting and always include a disclaimer.
 
There has been one other occasion on which I have been contacted by a person who was concerned about the way they had been represented in one of my articles.  Apparently, a mention of their name had resulted in my article being the first-listed result of a Google search for the person in question, and since the matter discussed in the article was one in which this person’s client had been unsuccessful they felt that it might reflect poorly on their professional capabilities.
 
Under our system there is almost always a ‘winner’ and a ‘loser’ in any case.  To be on the losing side does not necessarily reflect any lack of ability – sometimes you just do not have a good case!  Normally, therefore, I would not name individual representatives, unless there is some reason why their identities are likely to be of interest to readers, or if they are already effectively ‘public figures’ (such as counsel in high-profile cases such as Apple v Samsung).
 
On this particular occasion, the reason the person was named in my article was because they were named in the decision, and the reason they were named in the decision was because they had executed a statutory declaration regarding events which had a direct bearing on the outcome.  Sometimes people make themselves part of the story!  Even so, while I was reluctant to modify a piece in which I was simply reporting the facts of the case, I did offer to do so if the person in question felt particularly strongly about it.  I never received a reply to that offer, and the article stands as originally published.

WHAT IF YOU DON’T LIKE MY OPINIONS?

If you disagree with something I have written, feel free to let me know.  If I have got the facts substantially wrong, I will gladly post a correction.  Generally I will do this as a sidebar, or in a separate article, because I cannot help feeling that simply editing mistakes away is a form of ‘cover-up’.

Better still, however, you can use the comments area on the article in question to set the facts straight.  I have no problem at all with anonymous commenters, so long as the comments are respectful and on-topic, and I appreciate that there are many reasons why someone might need to remain anonymous.  I never edit comments, and (aside from the occasional spam comment, which the system normally catches automatically) I have only once had to remove a comment which was arguably defamatory – and only then after contacting the author privately to suggest that the comment may not come across as they had intended.

As in the examples discussed above, however, I am not likely to issue any ‘corrections’ or ‘clarifications’ if an article is factually correct, or if the matters in question are ones on which reasonable minds might legitimately differ, or might be viewed differently by people with different perspectives or background knowledge.

Again, the best way to address a difference of opinion or perspective is through the comments area, anonymously if necessary.

You should also bear in mind that blogging is, for the most part, a transitory activity.  Most articles here are read by just a few hundred people, predominantly within the first few days, after which they fade into obscurity.  Additionally, the blogosphere is a fickle beast, and to stay relevant a blogger has to keep posting new content, if not prolifically then at least regularly.  I expend enough of my effort moving forward to the next article – I barely have the time to look back!

The good news in this, if you do not appreciate something I have written, is that in the big scheme of things hardly anybody has seen it, and by next week it will be forgotten!

And it is only one person’s opinion, after all.

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