So, firstly, a public ‘thank you’ to everyone, for your support, encouragement and thoughtful responses.
There is, however, one message that I have been receiving over and over again from IP lawyers and patent attorneys – particularly, but not exclusively, those working in the Australian profession – which is that my comments on the stresses of the job, the yoke of billable hours, the deadlines, the weight of bearing responsibility for protecting and preserving clients’ rights, and so forth, have resonated far and wide. As one correspondent wrote to me, I have (apparently) ‘generated quite a stir in the profession.’
If this is right, and if it is at all indicative of conditions across the profession, then I have only one reaction: WTF, people?! Can it really be the case that dozens – if not hundreds – of people around Australia, and possibly thousands – if not tens of thousands – worldwide, are all suffering in silence in a job that breeds stress, anxiety and depression, largely through mechanisms that they themselves choose to perpetuate? You would think that this might be something we would talk about, but apparently quite the opposite is the case. More than one message I have received commented on the ongoing loss of collegiality in the profession as one cause of stress and disillusionment. Sadly, having witnessed examples of aggressive professional behaviour first-hand, I can well believe this to be true.
Assuming this problem is real, I am not equipped to solve it, nor do I intend to try. But before moving on to the topic adverted in the title of this article, there are just two things I want to say to all of the people who wrote to me about this issue, and the many more whom, I assume, have remained silent:
- please try to support and take care of each other – you are all in the same boat; and
- to anybody who needs help, please do not be afraid to seek it out, whether that be by talking to trusted colleagues, friends, family, or contacting any of the organisations that exist for this purpose (e.g., in Australia, beyondblue or Lifeline) – there is no shame in doing something that may make you happier and more productive, and possibly even save your relationships or your life.
Dr Roy Schestowitz and TechrightsDr Schestowitz’ biography at the Techrights site describes him as:
...a researcher with a Ph.D. in Medical Biophysics, living and working around Manchester University. He advocates the use of Free Software and Open Source technology in the public and private sectors. He also uses his background in computing (Honours degree in Software Engineering) to make personal contributions to the Free Software movement. He has a 5-part career of fitness, media, consulting on FOSS, coding/systems administration, and scientific research/academic publication.
Techrights openly opposes ‘software patents’ – indeed, this position forms a significant part of its raison d’être. I have not been able to find any coherent definition of a ‘software patent’ on the Techrights site, but it is seemingly a matter (as in the obscenity case of Jacobellis v Ohio) of ‘I know it when I see it’. And Dr Schestowitz and the other folks at Techrights apparently see it everywhere.
The Ideology of ‘Software Patent’ OppositionI take it that Techrights’ concerns with ‘software patents’ are similar to those expressed by the End Software Patents lobby group:
- ‘software patents’ prevent the free and open development and implementations of standards, including such things as web and digital video coding standards;
- ‘software patents’ restrict individuals’ rights to create and distribute software;
- ‘software patents’ expose companies to legal and financial risks that most cannot afford.
In this regard, Dr Schestowitz and I plainly disagree. However, I respect his right to hold the views that he does, and accept that he has his reasons for doing so. I am not entirely certain what those reasons are, however I infer from his writings that Dr Schestowitz’ beliefs are closely aligned with those of the Free Software Foundation (FSF), which explains that the ‘free’ in ‘free software’ means that the user has certain freedoms (as in ‘free speech’), not that the software is necessarily gratis (as in ‘free beer’). As the FSF discussion of free software goes on to say:
To use free software is to make a political and ethical choice asserting the right to learn, and share what we learn with others. Free software has become the foundation of a learning society where we share our knowledge in a way that others can build upon and enjoy.
To support free software is therefore first and foremost an ideological choice. I have to say that it is not entirely clear to me what it is that makes software so special – I am sure that there is much to be learnt and built upon in the proprietary products, processes and knowledge held by companies in all industries.
So, debate is important, and Dr Schestowitz has as much right as anyone – indeed, more than many, I suspect, given his knowledge and commitment to his cause – to contribute to the debate about software patents.
What he does not have, in my view, is a right to bully, abuse and defame people who hold opinions that differ from his own. And so when I discovered (because he himself alerted me to it) that Dr Schestowitz had extracted a small portion of my article, out of context, in order to serve his own fictional narrative, it made me really angry.
Dr Schestowitz’ Lies and MisrepresentationsIn his article, entitled Alice/Section 101 Still Spelling Doom for Proponents of Software Patents, Including Some Patent Law Firms, Dr Schestowitz sought to further support his baseless theory that boutique IP law and patent attorney firms are closing down and being absorbed into full-service law firms because of the demise of ‘software patents’ following the Alice decision of the US Supreme Court. This theory suits his preferred narrative, but is demonstrably wrong. Furthermore, his use of an excerpt from my article for this purpose is dishonest and misleading.
Firstly, Dr Schestowitz asserts, of me, that ‘one attorney moves from software patents to actual development of software’. This is a lie. I know this to be a lie, because I know that I have no specific intention (currently, at least) of moving (back) to ‘actual development of software’. More to the point, however, in the first paragraph of my article (which I can only assume that Dr Schestowitz did not actually read) I specifically said that ‘I have no new job to go to, and I genuinely have no idea what I am going to do next.’ Quite how anybody gets ‘software development’ from this, I cannot say. And, frankly, I think that at this point in my life and career I have moved a little beyond sitting at a keyboard cutting code for a living.
Then Dr Schestowitz cherry-picked (incidentally, something that he is fond of accusing others of doing) just under four paragraphs from the section of my article headed ‘The Law is Shifting’. This is just one of four general areas of discontent that I outlined, and my point was not that there is no further need for patent attorneys with expertise in software, but rather that I, personally, have arrived at the conclusion that my range of skills and experience would perhaps be better utilised in a different role.
However, even after quoting me on this, Dr Schestowitz manages to see dissembling and conspiracy where there is none. In his view, ‘maybe [I] just realise that [I] lie to the public and to clients, and [I] have a guilty conscience over it.’
A wish to assure Dr Schestowitz that my conscience is clear. I have never lied to the public. I have never lied to a client. The suggestion that I might have done so, thereby breaching my ethical duty to my clients, along with the Code of Conduct that binds me, borders on defamatory.
Why, and How, Dr Schestowitz Is WrongIn fact, all Dr Schestowitz succeeds in demonstrating is his complete ignorance of the role and obligations of a professional adviser, and of the circumstances in the IP industry.
The job of a patent attorney is to provide the best available advice to a client, based on an understanding of the client’s specific circumstances and objectives, and of the relevant law and other factors. The client then incorporates that advice into their decision-making. The subsequent instructions to the attorney may or may not be in direct accordance with the advice, depending upon other business inputs and considerations that contribute to the decision. Additionally, developments of the law by the courts, and changes in practice by patent offices, can result in advice that was sound at the time it was provided becoming outdated. Considering that it can take five years or more from an initial filing to obtain a patent, evolving law and practice can be a particular issue in this area. The fact that applications may be rejected, or granted patents found invalid, many years after some initial advice was provided is in absolutely no way an indication that anybody has ‘lied’ or been ‘lied to’.
As for the suggestion that structural changes in the IP industry, such as the decline of some types of firm, along with mergers and acquisitions, are somehow the result of recent decisions restricting the availability of ‘software patents’, this is just absurd and demonstrates Dr Schestowitz’ wilful ignorance in the service of his ideological cause. Had he bothered to actually read any of the articles he linked to in reporting the absorption of IP law boutique, Kenyon & Kenyon LLP, into full-service Texas law firm Andrews Kurth LLP, he would have found objective accounts of the real drivers of such events. For example, as the Nasdaq article explains:
Founded in 1879, Kenyon is the latest in a string of old-line intellectual-property-law firms to close over the past several years. Like Kenyon, many have been absorbed into full-service firms, largely a reflection of the increasing importance companies now place on the protection of patents, trademarks and copyrights.
Intellectual-property lawyers—both litigators and those who process patent applications—typically have technical backgrounds, with many holding advanced degrees in engineering or the sciences. That has made poaching existing intellectual-property specialists or scooping up entire boutiques even more attractive to larger firms trying to get into the practice.
In other words, contrary to Dr Schestowitz’ fictional account, skilled patent attorneys and IP lawyers are, in fact, in greater demand than ever. The patent statistics also bear this out. For example, USPTO data shows that between the 2000 and 2015 calendar years the number of US utility patent applications filed doubled, from around 296,000 to around 589,000, while the number grants rose from 157,000 to 298,000. What is changing is that the business is becoming increasingly competitive, transactional aspects of patent filing and prosecution are becoming commoditised, and client expectations and demands are evolving accordingly. The bottom line is that business models that worked perfectly well 10 or 20 years ago are, in many cases, no longer sustainable.
Finally, while Dr Schestowitz would doubtless be gratified by data presented on the Patently-O blog back in June 2016, showing that the number of new US patent practitioner registrations in recent years has fallen from highs in the late 1990s and early 2000s, the numbers are still way above historical averages, and reveal a profession that is far from in decline.
Conclusion – A Plea for Respectful DebateTo draw together the two threads of this article, I see:
- on the one hand, a profession of practitioners who appear, at least anecdotally, to be struggling under the pressure of providing a valuable and high-quality service to clients within a system that is making this task increasingly challenging; and
- on the other hand, an ideologically-driven anti-patent activist spinning a false narrative that devalues the work of patent practitioners, and who insults and (arguably) defames us, by spewing accusations that we lie and deceive clients in the service of propping up a patent filing, prosecution and enforcement business that is asserted, wrongly, to be in decline.
So my plea to Dr Schestowitz, and others of like mind, is this: try not to let your ideology eclipse your humanity. Do not forget that the targets of your derision are real people, just like you. In the vast majority of cases those people are hard-working and dedicated to acting in the best interests of their clients, according to the law as it is, not the law as you might like it to be. In far too many cases, based on my recent experience, they are people who are battling the consequences of stress brought on by a rigid global patent system, and an overwhelming sense of responsibility and duty to their clients. Who are you to judge them?