Lawyers are paid (and expected) to do what their client
tells
them.
That's not what the law says. I will refer you to the
ABA Model Rules,
which have been adopted as-is in a large number of states,
regarding
limitations on how far a lawyer can advocate for his client:
ABA Rule 3.1: Meritorious Claims and Contentions
and
ABA Comments with respect
to Rule 3.1
These
rules apply not only to patent lawyers, but even to patent
practitioners who
are not lawyers but who file and prosecute patent
applications in the
USPTO:
The USPTO has published a final rule implementing the
USPTO Rules of Professional Conduct (USPTO Rules). This rule replaces
the
USPTO Code of Professional Responsibility and conforms to the Model
Rules of
Professional Conduct of the American Bar Association, versions of
which have
been adopted by 49 states and the District of Columbia. The
new USPTO Rules
streamline practitioners’ professional responsibility
obligations, making the
USPTO obligations align with most practitioners’
state bar
requirements.
See USPTO
Rule of Professional
Conduct.
So an ethical patent attorney or practitioner would not
be
expected to make a frivolous argument
to the USPTO and a litigation
attorney wouldn't make a frivolous argument
in front of a court regarding
patentable subject matter. Not even an
unethical one is likely to do so,
because no attorney wants to be
sanctioned (in cash -- his or her own money),
reprimanded, suspended, or
disbarred.
By the way, please remember to keep
patent attorneys and litigation
attorneys separate. Patent attorneys do not
necessarily love litigation
attorneys, either. I suspect many patent attorneys
are seething because
litigation attorneys managed to get several members of the
concurrence in
the CLS case to say that a flexible, case-by-case claim analysis
was called
for. There is nothing in Rule 3.1 that would prevent an attorney
from
arguing that their client's case is different. Moreover, several members
of
the concurrence indicate that a so-called "bright-line" test is unproductive
and should be eschewed. Under these circumstances, I think any attorney
who
took a case would be subject to either sanctions or malpractice liability
for
not making the argument that their client's case was different.
Even worse, if a patent application has any merit to it at all even without
such an argument and a client demanded that claims be included
within
the application that the patent attorney would otherwise be reluctant
to
include, I think this case makes it difficult for an ethical patent attorney
not to acquiesce in the wishes of his or her client to include them.
Remember, there are deadlines involved in patent applications and before
both
trial courts and appeal courts. The U.S. is now a first-to-file country, at
least nominally. Once you are into a case, firing your client may
significantly prejudice him or her, which can result in liability. And
withdrawing from a case can require notice to and the consent of a judge to
ensure that the client is not prejudiced by your withdrawal.
Believe it or
not, most patent attorneys seem to want to do the right
thing. And being able
to do so for a good client helps reduce stress and
increase one's life
expectancy. Drafting bad claims for a bad client is, to a
patent attorney, not
all that different from an engineer being asked to cut
corners to save money
for his employer when the engineer feels that doing
so will result in a
defective product that may cost some number of lives
determined to be
acceptable to a bunch of bean counters. (See any Dilbert
comic strip or
cartoon.) The differences are that the engineer probably
won't be sued for
professional malpractice and the engineer doesn't need
to jump through as many
hoops as a lawyer to resign.
So if CLS bank stands for anything, it stands
for more confusion and
litigation. Just like the EFF attorney said. And I
would almost be willing to
bet that if this case is actually appealed to the
Supreme Court and it
renders a decision, it will be likely to generate even
greater confusion.
By the way, the above is not legal advice, no
attorney-client privilege is
accorded to you or anyone else as a result of this
posting, and you must
consult privately with your own attorney to get legal
advice and opinions
relevant for your particular situation. But most of my
discussion concerns
what is ethical for an attorney given the current
situation. If you are an
attorney, you should already know not to rely upon
the Internet for free
legal advice posted by anonymous individuals. You get
exactly what you
paid for it.
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